Cantwell v. Johnson

• Decision Date: 01 July 1911
• Citation: 236 Mo. 575,139 S.W. 365
• Parties: CANTWELL v. JOHNSON.
• Court: Missouri Supreme Court

139 S.W. 365

236 Mo. 575

CANTWELL v. JOHNSON.

Supreme Court of Missouri, Division No. 1.

July 1, 1911.

Motion for Rehearing, July 12, 1911.

1. EVIDENCE (§ 139) — RELEVANCY — SIMILAR TRANSACTIONS.

In an action by an indorser of a note to recover the amount he was compelled to pay thereon from the maker, evidence that the plaintiff and defendant during a long business acquaintance had many joint transactions, in which defendant carried the plaintiff for large sums, and exacted usurious interest under cloak of commissions and brokerages, was properly excluded.

2. FRAUDS, STATUTE OF (§ 44) — AGREEMENT NOT TO BE PERFORMED WITHIN YEAR — AGREEMENT TO INDORSE NOTES.

Under Rev. St. 1909, § 2783, providing that no action shall be brought to charge any person on an agreement not to be performed within a year unless in writing, an oral agreement by defendant to indorse the original and renewal notes of plaintiff to a bank till plaintiff realized on his other collaterals, which could not be within a year, would not support an action.

3. JUDGMENT (§ 461) — EQUITABLE RELIEF AGAINST JUDGMENT — PROCEEDINGS — ADMISSIBILITY OF EVIDENCE.

In a suit to restrain the enforcement of a judgment in favor of an indorser against the maker of a note for the amount which the indorser was compelled to pay thereon, evidence that when the note was made the indorser made an oral agreement with the maker to indorse the original and renewal notes at $50 per indorsement, and that this arrangement was to continue until the maker realized on his other collaterals, was properly excluded, in the absence of a tender of proof that the payee was willing to accept the indorser's new indorsement, and that the maker had other collaterals on which to realize, or had made any reasonable attempt to fulfill his part of the agreement by realizing on his other collaterals, or that he made any attempt to avert his injury by securing another indorser, or tried to place his loan elsewhere.

4. FRAUD (§ 9) — ELEMENTS — NATURE OF REPRESENTATIONS.

That a money lender induced the borrower to procure a loan at a bank to take up his loan, stating that he was in need of money, and transferred to the bank the collaterals held by him as security, and that foreclosure of the collaterals at the maturity of the bank's loan followed an interview between the bank's president and the former lender, the foreclosure being attended by all the due formalities of law, was no evidence of a fraudulent scheme on the part of the money lender against the borrower.

5. APPEAL AND ERROR (§ 1078) — REVIEW — ERROR WAIVED IN APPELLATE COURT.

Where the plaintiff states in his brief on appeal that he seeks no relief on the ground that defendant took usurious interest, nor does he seek the recovery of such usurious interest, he cannot rely on allegation in the pleading that, by virtue of the statute in such cases made and provided, the taking of usurious interest by defendant cut away his lien on collateral bonds and stocks by plaintiff.

6. JUDGMENT (§ 444) — EQUITABLE RELIEF — GROUNDS — FRAUD.

Fraud which will entitle the judgment debtor to equitable relief is not fraud in the cause of action itself, in false allegations or false testimony, but must be fraud arising on extrinsic matter, whereby he or the court was tricked, and the court was made an intrument of injustice.

7. JUDGMENT (§ 405) — EQUITABLE RELIEF — GROUNDS.

Where fraud, accident, surprise, or mistake is a ground for equitable relief against a judgment, plaintiff must come into court with a cause unmixed with his own negligence or fault; for no man is entitled to the aid of a court of equity when that aid becomes necessary by his own fault.

8. JUDGMENT (§ 407) — EQUITABLE RELIEF — DEFENSES IN ACTION AT LAW.

One who claims it to be against conscience to execute a judgment against him must clearly prove that he could not have availed himself of his defense in a court of law, or that he might have availed himself of it, but was prevented by fraud or accident unmixed with his own fault or negligence.

9. JUDGMENT (§ 405) — EQUITABLE RELIEF — NATURE OF REMEDY — NEGLIGENCE OF JUDGMENT DEBTOR.

Where a defendant in a case which had been repeatedly continued by consent, knowing that it was set for trial, and that plaintiff would not consent to further continuances, failed to enter an appearance, and on the denial of his motion to set aside a judgment failed to appeal, claiming that the plaintiff lulled him into security by not suing out executions until the year had gone by for him to sue out a writ of error, he is not entitled to have the judgment set aside by a court of equity.

10. JUDGMENT (§ 407) — EQUITABLE RELIEF — NATURE OF REMEDY — RESORT TO OTHER REMEDY.

Where the court denied defendant's motion for a new trial, and he slept on his right to appeal or bring error, his right to set aside the judgment in equity was res judicata.

11. JUDGMENT (§ 713) — CONCLUSIVENESS — MATTERS CONCLUDED.

Those issues which are germane and should or might naturally have been tendered are precluded by the judgment once for all.

12. APPEAL AND ERROR (§ 171) — PRESENTATION OF QUESTION IN LOWER COURT — THEORY OF ACTION.

In a suit to set aside a judgment, plaintiff cannot urge on appeal that res judicata is not formally pleaded, where both sides plead the judgment, the testimony on that score went in without objection, and the case was tried below on the theory that the matter had passed into the realm of a thing adjudged.

13. PLEDGES (§ 4) — DISTINCTION FROM CONDITIONAL SALE.

Where a lender of money surrendered the collaterals, which he held as security, and the borrower pledged them to a bank to procure a new loan to take up the former one, the former lender indorsing the note for the new loan, and at the maturity of the note the bank foreclosed, and the indorser purchased the collaterals and paid the balance due on the note, a subsequent agreement to resell the collaterals to the maker of the note, on his payment within a given time of the total amount the indorser had paid out, was a conditional sale, and not a pledge; so that the maker of a note had no right to redeem after the expiration of the time fixed.

14. PLEDGES (§ 16) — RIGHT TO REDEEM — BURDEN OF PROOF.

The burden is on one claiming the right to redeem property held by another to allege a mortgage or pledge, and make out his case by a satisfactory preponderance of evidence.

15. SALES (§ 64) — OPTION — CONSTRUCTION — TIME AS ESSENCE OF CONTRACT.

Time is of the essence of an option contract, and prompt performance by the holder of the option must be tendered.

16. EXECUTION (§ 171) — INJUNCTION AGAINST LEVY — EXCESSIVE EXECUTION.

Under Rev. St. 1909, § 2206, making it the duty of a sheriff in selling land under execution to subdivide it and sell only enough to satisfy the debt, and section 2207, giving the execution defendant the right to elect the part he wants sold first, where lands levied on are incumbered, the amount of incumbrances not being shown, the levy of execution will not be enjoined; the debtor having the remedy, in case of violation of duty by the sheriff in making the sale, by motion to set aside the sale.

17. EXECUTION (§ 172) — INJUNCTION — GROUNDS — EXCESSIVE LEVY.

Where plaintiff seeks to enjoin a levy of an execution on land on the ground that the levy is excessive, evidence of the value of plaintiff's equity in the land above incumbrances is properly excluded.

Error to St. Louis Circuit Court; Matt G. Reynolds, Judge.

Suit by Harry J. Cantwell against James Brooks Johnson. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

R. E. Rombauer, for plaintiff in error. John A. Gilliam, for defendant in error.

LAMM, J.

Equity. Suit to enjoin the enforcement of a judgment in favor of defendant and certain executions issued thereon, for an account, and for the redemption of certain corporate stock and bonds. A temporary injunction issued nisi, which was dissolved on final hearing and the bill dismissed. Unsuccessful in his motions for a new trial and in arrest, Cantwell saved his exceptions in a bill settled and allowed, and on due steps brings error, giving a supersedeas bond by our leave.

The pleadings:

Summarized, the bill alleges: That a certain time (in 1902) Johnson loaned Cantwell $4,000, taking as collateral security 500 shares of stock in the Columbia Lead Company and $3,000 of bonds issued by the Topozark Orchard Company, all of a par value of $8,000 and of an actual value in excess of the loan. That subsequently Cantwell paid $800 on the loan, and thereafter (it being due) Johnson, having an eye to the consummation of a fraudulent scheme outlined further on, "falsely" represented to Cantwell that he, Johnson, was in "need of money," and thereby persuaded Cantwell to borrow the money on the same collateral from the National Bank of Commerce, and repay him; promising at the same time that he would indorse Cantwell's note by way of renewal from time to time in the bank until such time as he was able to struggle out of his financial embarrassment and pay the bank's debt. That such indorsements were to be put upon a paying basis, something for something, a quid pro quo, viz., $50 apiece. That the note was executed to and discounted by said bank for $3,200, running for four months. That it bore Johnson's said indorsement, paid for at the agreed price, and was secured by said collaterals. That when the note to the bank became due, Cantwell was still in financial embarrassment, and Johnson, violating his agreement to indorse, fraudulently taking advantage of Cantwell's necessities in order to obtain the collateral deposited with the bank, declined to indorse, though requested to do so by Cantwell, and "fraudulently urged" the bank to foreclose in order that he might buy. That the bank, so urged by Johnson, gave Cantwell notice of foreclosure of the pledge, and in July, 1904, sold the collaterals to Johnson for the...