Cabool Nat. Bank v. McDowell

• Decision Date: 05 November 1914
• Docket Number: No. 1288.,1288.
• Citation: 184 Mo. App. 567,170 S.W. 682
• Parties: CABOOL NAT. BANK v. McDOWELL.
• Court: Missouri Court of Appeals

170 S.W. 682

184 Mo. A. 567

CABOOL NAT. BANK v. McDOWELL.

No. 1288.

Springfield Court of Appeals. Missouri.

November 5, 1914.

Rehearing Denied November 27, 1914.

APPEAL AND ERROR (§ 1033) — TRIAL (§ 396) — SMALLNESS OF JUDGMENT — RIGHT TO COMPLAIN.

Defendant could not complain on appeal that the smallness of the judgment rendered against him showed that it was rendered on a theory which was wrong, because not authorized by plaintiff's evidence, where it was authorized by a theory deducible from his own evidence.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by the Cabool National Bank against James McDowell and another. From judgment for plaintiff, the defendant named appeals. Affirmed.

Hiett & Scott and W. E. Barton, all of Houston, for appellant. Lamar, Lamar & Lamar, of Houston, for respondent.

ROBERTSON, P. J.

One J. H. Martin owed the plaintiff $500, and while so indebted he conveyed to defendant and another a tract of land in Texas county, and as a part of the consideration therefor defendant, at that time cashier of plaintiff bank, according to plaintiff's petition and contention at the trial, agreed to pay said indebtedness. The defendants answered with a general denial and a plea that the said tract and other land was conveyed to them to secure them as sureties of Martin on indebtednesses to other parties and to pay the other defendant an attorney's fee of $500. This action was brought against defendant and the other grantee to recover judgment for the amount due plaintiff from Martin. A jury was waived, a trial had by the court, and judgment entered discharging the other grantee and against McDowell for $200. There was no finding of facts, neither were there any declarations of law asked or given. Defendant has appealed, and assigns as error that there is no evidence on which to base the judgment, and that it is not responsive to the pleadings, in that the action is on contract, and the finding is on the theory of an implied trust.

The plaintiff's testimony is to the effect that defendant McDowell, then its cashier, agreed unequivocally, at and before the conveyance of the land to him by Martin, to pay to plaintiff Martin's note to it, which testimony is sufficient to sustain a judgment for $500 against him. Defendant McDowell testified that he, being a surety on other indebtednesses of Martin, took the conveyance to secure himself, and agreed only that, if he realized any sum over and above the amount for...