Briggs v. Kansas City Joint Stock Land Bank

• Decision Date: 24 June 1931
• Citation: 40 S.W.2d 682,328 Mo. 23
• Parties: Grace M. Briggs, Administratrix for Charles S. Briggs, Appellant, v. Kansas City Joint Stock Land Bank
• Court: Missouri Supreme Court

40 S.W.2d 682

328 Mo. 23

Grace M. Briggs, Administratrix for Charles S. Briggs, Appellant, v. Kansas City Joint Stock Land Bank

Supreme Court of Missouri

June 24, 1931

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Frank Doster, Frederick E. Whitten, Winger, Reeder, Barker and Gumbiner & Hazard for appellant.

(1) The contract of pledge of the promissory note is unenforcible because of the unknowability of its terms. Holz v Olds, 84 Ore. 567; Wesson v. Horner, 25 Mo. 81; Huff v. Shepard, 58 Mo. 242; Ringer v Holtzclan, 112 Mo. 519; Boyd v. Paul, 125 Mo. 9; Kelly v. Thucey, 143 Mo. 422; Allen West & Co. v. Richter, 286 Mo. 691; Crane v. Berman, 297 S.W. 423; 1 Paige on Contracts (2 Ed.) sec. 95; Pulliam v. Schimpf, 109 Ala. 179; Arkansas Valley Town & Land Co. v. Ry. Co., 49 Okla. 302, 151 P. 1034; 1 Paige on Contracts (2 Ed.) sec. 96. (2) The court below like the U.S. District Court violated the rule against parol testimony to explain patent ambiguities. 1 Greenleaf on Evidence, sec. 305; Davison v. Davison, 125 U.S. 90, 31 L.Ed. 635; Thompson v. Williams, 30 Kan. 114; Wolff Truck Frame Co., v. Steel Foundaries, 195 F. 944. (3) The judgment payment made out of the collected proceeds of the pledged note was a sham payment by the respondent bank. Freeman on Judgments, sec. 472. (4) The possession of the note was obtained by the fraudulent pretense that an interest payment was overdue justifying immediate foreclosure. Meade v. Bunn, 32 N.Y. 275; Cleveland v. Smith, 132 U.S. 318, 33 L.Ed. 384; Cleveland v. Richardson, 132 U.S. 333; Radick v. Hutchins, 95 U.S. 210.

E. F. Halstead and Harding, Murphy & Tucker for respondent.

(1) The finding of the court that whatever interest, if any, Briggs might have in the note in question, was subject and inferior to the right, title and interest of respondent is justified by the record. Bank v. Bank, 80 Kan. 205; Jones v. Coates, 196 F. 866. (2) The court committed no error in permitting Cravens to testify touching the verbal pledge agreement between himself and Watkins. (a) The contract was verbal. The evidence did not contradict the written receipt; the written document was given only as a receipt and not as a contract. (b) No proper objection was made to the admission of the evidence. (c) No complaint was made of this action of the court in appellant's motion for new trial. (3) Appellant's contention that the payment made in satisfaction of the judgment was a sham and was not bona fide cannot be sustained. (a) That was not an issue in the case; (b) appellant made no complaint of this point in his motion for a new trial; (c) the satisfaction of the judgment was made long before Briggs had any interest in the note. Briggs did not claim to have obtained the assignment of the note until May, 1921, and then he got only the interest or claim which Watkins had at that time; (d) the credit of the full $ 5,941.02 on the note was erroneously made. Piekarsky advanced the $ 5,941.02 upon condition that the judgment was to be paid and the balance credited on the note. Briggs's assignors fraudulently got the benefit of the payment of the judgment; (e) the judgment was satisfied at the request and direction of Piekarsky under the belief that it was a valid lien against the land. (4) The possession of the note was not obtained by fraud. The loan under its terms and under the law had been called in December. Watkins had agreed to reduce or cause a reduction. The deposit of the note was in partial compliance with his agreement. The payment of defaulted interest was not accepted until after the deposit of the note. Cravens did not mislead Watkins; Watkins misled Cravens. (5) All of the issues of fact were found -- and properly found -- against appellant. The findings of the court are equivalent to a verdict of the jury and if there is any substantial evidence to support them, they will not be interfered with by the appellate court. Marsden v. Nipp, 30 S.W.2d 77; Courtner v. Putnam, 30 S.W.2d 126. (6) If this is a replevin suit, appellant must fail because Briggs was not entitled to the exclusive and immediate possession of the note at the time of the institution of the suit. If it is an action in conversion, it must fail for the reason that on the 12th day of January, 1921, the date of the alleged conversion, Briggs, had no interest in the note and was not entitled to the possession of it. American Metal Co. v. Daugherty, 204 Mo. 71; Kerman v. Leeper, 172 Mo.App. 286; Cook v. Smith, 200 Mo.App. 218; Munday v. Britton, 206 Mo.App. 153.

OPINION

Ragland, J

This is an action at law wherein the plaintiff seeks to recover the possession of a promissory note, together with damages. On the trial below a jury was waived and the cause tried to the court. The finding and judgment were for defendant. No findings of fact were requested, nor were any declarations of law asked or given. It follows that if the court's general finding for the defendant can be sustained on any legal theory applicable under the pleadings, the judgment must be affirmed. The evidence has been sifted, and will be summarized, with that general proposition in mind.

At the time of the transactions giving rise to this controversy the respondent's corporate name was the Liberty Joint Stock Land Bank, and its principal place of business was at Salina, Kansas. It subsequently moved its office to Kansas City, Missouri, and changed its name to the Kansas City Joint Stock Land Bank.

On June 1, 1919, one Watkins owned 360 acres of land in Douglas County, Kansas, the legal title to which stood in the name of one Conner. Through Conner, Watkins on that day obtained a loan of $ 36,000 on the land, which by the terms of the note and deed of trust executed in connection therewith was payable on an amortization plan in sixty-six semi-annual installments, the first installment being due on the first day of December, 1919, and a like sum due semi-annually on the first day of June and December of each year thereafter until all were paid. The deed of trust provided that the mortgagor's failure to pay any installment when due should cause the whole debt to mature at the option of the holder thereof without notice.

The installment of the mortgage debt maturing December 1, 1920, was not paid when due. Thereafter and pending the default, Watkins wrote respondent that he was negotiating a sale of the Conner land and would arrange for the purchaser to pay the past due installment. The respondent in the meantime had come into possession of information from which it concluded that the loan had been made on the basis of a gross over-valuation of the land, and that as a consequence the loan was excessive to the extent of $ 18,000. It thereupon demanded that the mortgage debt be correspondingly reduced as a condition precedent to its re-instatement or continuance as a subsisting loan after the default. Watkins finally advised respondent by letter that he had sold the land to B. A. Piekarsky, who lived in Chicago, and that the latter would pay the over-due installment and $ 18,000 in reduction of the debt as a whole.

On December 31, 1920, Piekarsky mailed respondent a check for $ 1270.50, the amount of the installment due December 1, 1920, with interest. This check was deposited to the credit of respondent in the Farmers National Bank at Salina, Kansas, on January 6, 1921. On January 7, 1921, respondent sent a telegram to Piekarsky, requesting him to wire at once the consideration and terms of his purchase of the Conner land. Piekarsky wired: "Purchase price fifty four thousand dollars, interest to your bank, taxes for next year, cash eighty-seven hundred and note for balance." On January 10, 1921, respondent telegraphed Piekarsky: "Wire us immediately whether you have agreed with Watkins to make reduction fifteen or eighteen thousand dollars our loan and if so when this reduction will be made. Answer at our expense." Walter Cravens, president of the respondent bank, was in Chicago at about the time of this exchange of telegrams and called upon Piekarsky, from whom he learned that nothing whatever had been said in the negotiations between him and Watkins about the reduction of the loan. At Kansas City, on his return from Chicago, Cravens called Watkins over the telephone and asked him to bring to Salina the abstract, deeds and all papers pertaining to the sale of the land to Piekarsky.

In response to Cravens's request, Watkins appeared at respondent's bank in Salina, Kansas, on January 12, 1921, with two deeds and a note. One of the deeds was from Conner to Watkins and the other from Watkins to Piekarsky. The note was the one given by Piekarsky to Watkins for the balance of the purchase money for the Conner land. At the conference then had, according to Cravens's testimony, an oral agreement was entered into between Cravens, representing the respondent, and Watkins. This agreement was to the effect that Watkins would forthwith, by way of additional security for the $ 36,000 loan, give respondent a mortgage on business property in Quenemo Kansas, of sufficient value to secure $ 18,000 thereof -- to be approved by respondent, and that Watkins would endorse and deliver to respondent the Piekarsky note to be held by it pending the furnishing of such additional security, the note to be returned to Watkins upon the giving of the additional security, but its proceeds to be applied as a payment on the $ 36,000 mortgage debt if the additional security was not given. Cravens further testified that pursuant to such understanding Watkins endorsed and delivered the note to him for respondent and then requested that he be given a receipt for the note and deeds which he turned over at the same time, and thereupon he, Cravens, dictated, signed and...