Boshart v. Gardner, 4-3630.

• Citation: 77 S.W.2d 642
• Decision Date: 07 January 1935
• Docket Number: No. 4-3630.,4-3630.
• Parties: BOSHART v. GARDNER et al.
• Court: Arkansas Supreme Court

77 S.W.2d 642

BOSHART v. GARDNER et al.

No. 4-3630.

Supreme Court of Arkansas.

January 7, 1935.

Appeal from Howard Chancery Court; Pratt P. Bacon, Chancellor.

Action by Lewis H. Boshart against Joe B. Gardner and others for foreclosure. From a decree limiting plaintiff's recovery to 50 per cent. of the debt and interest, plaintiff appeals.

Modified and affirmed conditionally.

E. L. Carter, of Little Rock, for appellant.

Geo. R. Steel, of Nashville, for appellees.

JOHNSON, Chief Justice.

On December 1, 1919, appellees Gardner and wife executed and delivered to the Conservative Loan Company their note for the sum of $1,500 and interest and to secure the due payment thereof executed a real estate mortgage upon certain lands situated in Howard county, Ark. Thereafter, the note and mortgage securing same, in regular course of business, was transferred and assigned to appellant, Boshart. Subsequently, in 1929, a renewal agreement was effected between the mortgagors and the holder and owner of said mortgage and note whereby the maturity of the debt was extended until 1931 and subsequent years. Neither the principal sum nor the interest thereon was paid by appellees at maturity, as provided in the renewal agreement. On May 8, 1933, appellant submitted to appellees, by letter, a proposition of settlement of the debt as follows:

"Mr. Joe B. Gardner,

"Dear Sir: I am sending Mr. E. L. Carter the mortgage note which I hold on your place and in order to get this settled up I will take fifty per cent of the face of the mortgage if you can get a Federal loan and pay it up, or from some other source. Please let me know what you wish to do. Trusting you will find it convenient to do this, I am.

                    "Sincerely yours,      L. H. Boshart."
                

And on May 17, 1933, appellees wrote appellant the following letter in response to his proposition of settlement:

                               "Center Point, Ark. 5-17-33
                "L. H. Boshart, Esq., Lowville, N. Y
                

"Dear Sir: Your very kind letter of recent date has been received and contents noted. In answer will state that I thank you for the kind offer to discount my paper fifty per cent for the cash. I intend trying for a Federal Loan at once. Do not see why I should not be successful in securing a loan unless the laws of Ark. regarding deficiency judgments should preclude my getting a loan. If the Supreme Court which is soon to pass on the Act passed by the Legislature of 1933 forbidding deficiency judgments in foreclosure suits does not declare the Act invalid, then in that event, the Gov. will call a special session of the Legislature to repeal the Act. In any event I intend to make a great effort to meet your generous offer. I will advise you.

                    "Yours truly,     Joe B. Gardner."
                

On July 5, 1933, appellant instituted this action in foreclosure, and a receiver was prayed and appointed thereby putting at an end the negotiations heretofore adverted to. Appellees answered appellant's complaint in foreclosure by asserting the novation of the contract as heretofore stated, and, upon trial of the cause, the chancellor found the facts to be as contended by appellees, and directed that appellant was only entitled to judgment against appellees for the sum of 50 per cent. of the debt and interest and denying any recovery for taxes paid. It was further decreed that,...