Bauer v. Weber Implement Co.

• Decision Date: 31 May 1910
• Citation: 148 Mo. App. 652,129 S.W. 59
• Parties: BAUER v. WEBER IMPLEMENT CO.
• Court: Missouri Court of Appeals

129 S.W. 59

148 Mo. App. 652

BAUER v. WEBER IMPLEMENT CO.

St. Louis Court of Appeals. Missouri.

May 31, 1910.

1. FRAUDS, STATUTE OF (§ 139) — CONTRACTS COMPLETELY PERFORMED.

A contract for exchange of real estate is taken out of the statute of frauds by its complete execution or performance.

2. FRAUDS, STATUTE OF (§ 143) — PERSONS TO WHOM STATUTE IS AVAILABLE.

A stranger to a contract cannot set up the statute of frauds against it.

3. TRIAL (§ 251) — INSTRUCTIONS — APPLICABILITY TO PLEADING AND EVIDENCE.

Defendant is not entitled to an instruction submitting the issue of a contract having been induced by fraud, not having pleaded fraud, and having tried the case, not on the theory that the contract was so induced, but that it was rescinded.

4. SALES (§ 234) — LIABILITY OF BUYER TO MORTGAGEE — AGREEMENT WITH SELLER.

Plaintiff by promising when buying an engine and separator to pay as part consideration a mortgage for a certain amount on the separator, having no notice or knowledge that the mortgage was also on the engine, though in fact it was, does not make it enforceable against the engine as against him.

5. SALES (§ 234) — LIABILITY OF BUYER TO MORTGAGEE.

One having acquired title to chattels without notice or knowledge of a mortgage thereon, his subsequent learning thereof does not make it enforceable against him.

6. EVIDENCE (§ 219) — ADMISSIONS — COMPROMISE.

Evidence relating to a compromise of a disputed claim is not competent as an admission by a party thereto against interest.

Appeal from Circuit Court, St. Francois County; Chas. A. Killian, Judge.

Action by Emile W. Bauer against the Weber Implement Company. Judgment for plaintiff. Defendant appeals. Affirmed.

B. H. Boyer and J. A. Doughty, for appellant. B. H. Marbury and Edw. A. Rozier, for respondent.

GOODE, J.

Replevin for a steam engine which was sold by defendant to J. D. Counts, along with a separator and sawmill, in June, 1906. At that time defendant took from Counts for part of the purchase price of said machinery five notes amounting to $525, falling due as follows: Two on October 15, 1906, two October 15, 1907, and one October 15, 1908. These notes were secured by a chattel mortgage executed by J. D. Counts to defendant June 16, 1906; but what the mortgage covered is in dispute. The copy of it filed with the recorder of deeds of St. Francois county July 9, 1906, covered nothing but the separator; whereas, defendant contends the original mortgage covered the steam engine in controversy in the present case. The original was not filed with the recorder until April 22, 1907, and when introduced in evidence appeared on its face to cover both the separator and the steam engine; but an issue was made at the trial as to whether it was executed by Counts to cover the engine described in it, or an interlineation was afterwards made, without authority from Counts, to make it appear the engine was mortgaged. Besides the defense that the chattel mortgage covered the engine in controversy and plaintiff had actual knowledge of the fact when he acquired title to it, if he ever did, the further defense is made that in truth he never acquired the title. The facts touching the issue are these: The Tetley-Klein Lumber Company, a corporation, owned two houses and three lots on which the houses stood in Farmington, St. Francois county. The lots were Nos. 7, 8, and 18, block 17, J. L. Haw's addition to Farmington, and were known as the Tim Glover property. A mortgage to a building and loan association was on the property for $600 or upwards. Prior to March 17, 1907, plaintiff Bauer had negotiated with the Tetley-Klein Lumber Company to purchase the property, and the company had offered it to him for $500, he to assume the incumbrance to the loan association. After Bauer had agreed to take the property, he entered upon a negotiation with Counts to purchase the engine in controversy, and the result of the negotiation, according to the testimony for plaintiff, was that Counts traded him the engine, sawmill, and separator for the houses and lots aforesaid, and by plaintiff's direction the lumber company executed a deed for them to Counts. It is certain a deed was executed, and the evidence strongly inclines to prove under the arrangement stated; but Counts testified it was pursuant to a different arrangement, and his version will be stated presently. Bauer and Counts executed the following memorandum of an agreement prepared by Wm. Kennedy, Counts' father-in-law, when both parties were present, and signed by them in Kennedy's office as soon as it was drawn: "This contract made this 17th day of March, 1907, by and between J. D. Counts of the 1st part and Emile Bauer 2 part witness J. D. Counts has this day traded Bauer his engine, sawmill and separator for 2 houses and lots situated in South Farmington, known as the Tim Glover property J. D. Counts agrees to pay Emile Bauer Five Hundred and Fifty dollars ($550) and assume the mortgage of the Building & Loan for Six hundred Emile Bauer agrees to assume the payment of a deed of trust now in the hands of Weber Implement Co. for Five Hundred and Twenty-five dollars on separator. J. D. Counts. E. W. Bauer. Received $8 as earnest money from J. D. Counts, March 17, 1907. E. W. Bauer."

Without going into details, suffice to say the testimony of Samuel Tetley, president of the Tetley-Klein Lumber Company, as well as the testimony of other witnesses, was in corroboration of Bauer's version of the arrangement between him and Counts, and went to prove the memorandum supra expressed the agreement between those parties, which was carried out. Bauer took possession of the steam engine the day the memorandum was signed, and held possession until May 2, 1907, when it was taken from him by Marion Smith, acting as agent for defendant, and turned over to defendant. The engine was then standing in an alley by plaintiff's residence, from whence it was moved by Marion Smith for defendant, which claimed the right to possession on account of Counts defaulting in the payment of some of the notes secured by the chattel mortgage; defendant insisting, as stated, said mortgage covered the engine. Shortly after it was taken by Smith, plaintiff instituted this action against him and defendant to recover possession, but, as it appeared on the trial Smith had turned the engine over to defendant, and the latter had sold it under the mortgage, the action was dismissed as to Smith. Defendant and Smith filed separate answers in the case, and Smith alleged various facts going to show Counts was induced to execute the written memorandum whereby the engine was traded to plaintiff by the fraudulent representation and promise of plaintiff. The alleged fraudulent representation by plaintiff was that he owned the houses and lots, whereas he did not own them, but the lumber company did. The supposed false promise was to pay off the mortgage for $600 on them, or to give Counts $600 wherewith to pay the mortgage. No more will be said about the alleged fraudulent inducement of the contract for the trade, for two reasons: First, because that defense was not pleaded in the answer of the Weber Implement Company against which the judgment was rendered; second, the defense of fraud in inducing the contract was abandoned at the trial in favor of the defense that Counts and plaintiff rescinded the contract shown by the memorandum immediately after executing the instrument. The defenses set up in the answer of the Weber Implement Company were a general denial; that the mortgage of Counts to defendant embraced the engine in controversy, and said mortgage was recorded prior to the institution of this action; that defendant took possession of the engine under the mortgage prior thereto, and afterwards sold it under the power of sale given in the mortgage; that plaintiff at the institution of this action was not, and never was, the owner of or entitled to possession of the engine, and never had any interest in it; that Counts was a necessary party defendant; that plaintiff had actual knowledge the mortgage from Counts to defendant covered the engine at the time this action was instituted and long prior thereto. Counts testified plaintiff agreed before the signing of the memorandum to pay $600, the amount of the incumbrance on the lots, and he called on plaintiff to do this as they went down stairs from Kennedy's office. Plaintiff said he would get the money from his brother and pay Counts, but did not have it then. Counts insisted on immediate payment, and, when plaintiff declined to pay at once, Counts said the contract would be canceled, to which plaintiff assented; that plaintiff then said he wanted to buy the engine and other machinery, would pay $600 for them, and had a check for the price or some other mode of raising the $600. Counts agreed to sell the property to plaintiff for said price, provided plaintiff would pay him within two weeks or thereabouts; that he (Counts) then had a contract with a man named Kollmeyer to do sawing, and an...