Bollinger v. New Era Pub. Co.

• Decision Date: 20 February 1934
• Docket Number: No. 5316.,5316.
• Citation: 68 S.W.2d 725
• Parties: BOLLINGER v. NEW ERA PUB. CO.
• Court: Missouri Court of Appeals

68 S.W.2d 725

BOLLINGER v. NEW ERA PUB. CO.

No. 5316.

Springfield Court of Appeals. Missouri.

February 20, 1934.

Appeal from Circuit Court, Phelps County; J. H. Bowron, Judge.

"Not to be published in State Reports."

Action by C. L. Bollinger, receiver of the National Bank of Rolla, against the New Era Publishing Company. From a judgment for defendant on the first count of plaintiff's petition, plaintiff appeals.

Affirmed.

Rowland L. Johnston, of Rolla, for appellant.

A. B. Holmes, of Rolla, and Harry Clymer, of Steelville, for respondent.

SMITH, Judge.

This is a suit brought by C. L. Bollinger, receiver of the National Bank of Rolla, upon three notes described in three separate counts in the petition. There is no question raised as to the petition, so it is unnecessary to set out any part of the petition. The first count sought to obtain judgment upon a note for $3,170, with interest thereon and for reasonable attorney fees. The second count sought judgment upon a note for $300, with interest and attorney fees, and the third count sought judgment upon a note for $561.95, with interest and attorney fees.

Answer to each of the counts was filed. Trial was had before the court, a jury having been waived, and judgment was had for the plaintiff for the amounts prayed under the second and third counts, but judgment was rendered for the defendant upon the first count. The defendant did not appeal from the judgment rendered against it on the second and third counts, but the plaintiff did appeal from the judgment rendered against him on the first count.

The defense to the first count, as claimed by the defendant, is set forth in its answer, as follows:

"Now on this day comes the defendant and for its answer to the first count in plaintiff's petition admits the note sued on in said first count was executed by the defendant and delivered to the National Bank of Rolla, but avers it was so executed and delivered without any consideration whatever, and that at the time of its execution and delivery this defendant was not indebted to said Bank in any way, directly or indirectly, in the sum of three thousand, one hundred and seventy ($3,170.00) dollars, did not receive any value for said note and that said note is not now and never was a legal, valid or binding obligation on the part of this defendant and was and is wholly without consideration, null and void, and denies generally and specifically each and every other allegation in said first count contained.

"And for another and further answer this defendant avers that on the ____ day of October, 1930, the National Bank of Rolla was the owner and holder of a certain note for the sum of three thousand, one hundred and seventy ($3,170.00) dollars, dated on the 18th day of February, 1930, and executed by Mildred S. Martin and Rulif M. Martin, her husband, and secured by a certain deed of trust on the undivided one-half interest in Lots 2, 3 and 4 in Block 44 in the City of Rolla, Missouri, subject to the dower interest of one Harriet M. Strobach; that said deed of trust was subsequent to a prior lien on all of said property held by other parties to secure the payment of a note on which there was then unpaid a certain sum, to-wit, $4,000.00; that in addition to the security provided by the deed of trust executed by the said Martin and Martin to said Bank, as aforesaid, the said Martin and Martin delivered to said Bank, as additional collateral security, a certain note for the sum of $3,000.00 executed by this defendant and payable to said Rulif M. Martin; that at said time the real estate conveyed by said deed of trust so executed by the said Martin and Martin to secure said note for $3,170.00 aforesaid, was reasonably worth more than the aggregate sum of the notes secured by said deed of trust and the prior deed of trust, which fact was well known to the officers of said National Bank; that on the 10th day of October, 1930, the first deed of trust on said property was foreclosed at the request and direction of and with the knowledge of said National Bank and at such sale said property was bid in by one F. E. Denison acting for and on behalf of and for the use and benefit of said National Bank, for a sum in excess of $4,000.00, and soon thereafter at different times sold and conveyed by mesne conveyances to various other parties for sums aggregating more than the total amount bid for said property at the foreclosure sale and the amount due on the note secured by the second deed of trust executed by said Martin and Martin and then held by said Bank, to-wit, the sum of $8,000.00, all of which was received by said Bank and the officers of said Bank for the use and benefit of said Bank and that by virtue of said sales and the receipt of such money, the said note so executed by said Martin and Martin to said Bank was and has been fully paid.

"Defendant further avers that at the time it executed the note sued on in said first count it had no...