Bartlett v. Taylor

Decision Date06 March 1922
Citation238 S.W. 141,209 Mo.App. 612
PartiesCHARLES W. BARTLETT, Respondent, v. WILLIAM L. TAYLOR, Appellant
CourtKansas Court of Appeals

Appeal from the Circuit Court of Jackson County.--Hon. E. E Porterfield, Judge.

AFFIRMED.

Judgment affirmed.

Clif Langsdale for respondent.

John P McCammon for appellant.

OPINION

ARNOLD, J.

--This is a suit for a commission alleged to be due plaintiff for procuring a loan. Originally it was brought against a number of other persons joined with defendant. At the first trial verdict and judgment were for plaintiff and against all the defendants. On appeal this court reversed the judgment outright as to all except the defendant herein and, as to him, reversed the judgment and remanded the cause for a new trial on account of error in instructions. [Bartlett v Garrett, et al., 175 S.W. 79.] The cause was retried, resulting in a judgment for plaintiff in the sum of $ 7,000, and defendant appeals.

The petition alleges that defendant employed plaintiff to secure a loan for defendant and others who were engaged in organizing the Missouri, Fidelity & Casualty Company of Springfield, Mo., from some bank or trust company in Kansas City, Mo., in the sum of $ 75,000, on certain terms and conditions, and plaintiff was to be paid as commission therefor, the sum of $ 5,600; that in pursuance of said employment he found a bank and a trust company, either of which would make the loan; that afterwards defendant and his associates secured the loan from the bank and thereafter refused to pay plaintiff the sum agreed upon for his services. The prayer was for $ 5,000 and interest.

The answer is, first, a general denial and by way of separate defense, defendant alleges that on May 30, 1914, he filed in the District Court of the United States, in and for the Southern Division of the Western District of Missouri, at Springfield, his petition asking to be adjudged a bankrupt, and that with said petition was filed a list of creditors, including plaintiff herein; that on said petition defendant was duly adjudged a bankrupt on June 1, 1914, and was discharged as a bankrupt on August 24, 1914; that plaintiff was duly notified of said finding and of the time and place for filing his claim against defendant.

Plaintiff denied that the discharge in bankruptcy affected his claim because (a) he had not been notified of the bankruptcy proceedings during their pendency; (b) because the claim was so listed that it was not described as the debt of the bankrupt, but as that of the Missouri Fidelity & Casualty Company, and, (c) because it was not such a claim as could be discharged in bankruptcy.

A jury was waived and the cause was tried to the court. Four declarations of law were given upon request of defendant. The finding was for plaintiff in the sum of $ 7,000. The court refused to give certain other declarations of law asked by defendant. A motion for new trial was overruled and defendant appealed.

The same evidence was introduced as in the former trial, being read from the Bill of Exceptions, and as this court in its opinion above referred to, ruled on all the objections now urged by defendant, excepting the bankruptcy question, it will be necessary for us to pass only upon that point.

In his first assignment of error defendant urges that his discharge in bankruptcy was a bar to plaintiff's recovery. The testimony is that in his bankruptcy proceedings defendant scheduled the item in controversy under the following heading: "Liability on notes or bills discounted which ought to be paid by drawer, maker, acceptor, endorser--Schedule A4." This claim was described in said schedule as follows:

"Charles Bartlett, Kansas City, Missouri, judgment for $ 5,000 jointly against W. L. Taylor, J. A. Taylor, W. L. Garrett, H. L. Schneider, E. E. E. McJimsey, J. P. McCammon and J. R. Boyd, all of Springfield, Missouri. Case now in Kansas City Court of Appeals. Bond signed by Missouri Fidelity & Casualty Company. Judgment if affirmed to be paid by Missouri Fidelity & Casualty Company, (signed) William Lawrence Taylor, petitioner."

The bankruptcy proceedings were instituted while this case was pending on appeal from the verdict and judgment on the former trial, and for this reason plaintiff urges that the discharge in bankruptcy does not bar his recovery for the reasons (a) because the claim was not one which was provable in bankruptcy; (b) because the claim was listed, scheduled and described as one which should be paid by someone other than the bankrupt; (c) because the bankrupt was not notified of the pending of the bankruptcy proceedings as required by the Bankruptcy Act.

The Bankruptcy Act of 1898, section 7, sub-division 8, makes it the duty of the bankrupt to prepare, make oath to, and file a list of his creditors, showing their residences, if known, and if unknown, that fact to be stated.

The testimony shows that plaintiff had the same residence and post office address in Kansas City, Missouri, at the time of the former trial and continuously until several months after the discharge of the bankrupt; that the suit was instituted in the name of Charles W. Bartlett and that all of the letters addressed to plaintiff in 1910, relative to the loan to be made, were addressed to Charles W. Bartlett. It is also in evidence that, at the time defendant claims a notice was mailed to Charles Bartlett, there was one Charles E. Bartlett living in Kansas City, Missouri. Plaintiff testified that no notice of the bankruptcy proceedings was ever received by him.

In this connection, the record further shows that Langsdale & Howell of Kansas City, Mo., were the attorneys for plaintiff at the former trial, and that the first actual notice of the bankruptcy proceedings was contained in a letter addressed to them by the attorney for defendant, but such notice was received by said attorneys long after defendant's discharge in bankruptcy.

It is also noted that prior to the institution of the bankruptcy proceedings, defendant addressed letters to plaintiff invariably as "Charles W. Bartlett." On one occasion defendant addressed plaintiff at Kansas City, Missouri, and again, at Box 904, Kansas City, Missouri. The testimony further shows that plaintiff and defendant had been intimately acquainted prior to the time this controversy arose, that they belonged to the same church and had many mutual acquaintances.

We hold that, under this evidence, defendant will be charged with knowledge of plaintiff's address more definitely than appears in the schedule in the bankruptcy proceedings. It remains to be determined whether the address of plaintiff as set forth in the bankruptcy proceedings is sufficient compliance with the Act to entitle defendant to his discharge from this obligation. This question arose in Caglistro v. Indelle, 17 A. B. R. 685, decided in February, 1907. In that case the address of the creditor was scheduled as "Mulberry Street, New York City." It was shown the creditor lived at 141 Mulberry Street at the time of filing the schedule and petition and had resided at such place for fifteen...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT