Citizens' Bank of Springfield v. Thomas
| Decision Date | 02 July 1924 |
| Docket Number | No. 3390.,3390. |
| Citation | 264 S.W. 86 |
| Parties | CITIZENS' BANK OF SPRINGFIELD v. THOMAS et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.
Action by the Citizens' Bank of Springfield against W. S. Thomas and another.
From a judgment for defendants, plaintiff appeals. Affirmed.
Fred A. Moon and V. O. Coltrane., both of Springfield, for appellant.
Mann & Mann, of Springfield, for respondents.
This is a suit based on a covenant in a warranty deed made to the defendants, wherein it is provided that the defendants, who were the grantees in the deed, assumed and agreed to pay a note of $2,000, given to plaintiff herein by W. E. Clark and his wife, Wynafred G. Clark, the grantors in the deed, and secured by second deed of trust on land conveyed to defendants. The judgment went for defendants in the trial court, the cause being tried by the court sitting as a jury, and the plaintiff appeals.
Defendants are husband and wife, and when we use the term defendant we have reference to W. S. Thomas, because it was he who made the deal, and the defendant concerned in the first instance.
It appears from the evidence that Clark and the defendant W. S. Thomas each owned some property which they were desirous of disposing of by trade, and each placed his property in the hands of 0. 0. Sanders, a real estate agent. It was through the endeavors of Sanders that the parties were brought together in the making of a contract. A contract to exchange properties and pay some money was entered into on March 27, 1022, and is as follows:
After signing the contract, the evidence shows that the parties agreed to go to Attorney Fred Moon to have him draw up the papers which were to evidence the transfers. It was agreed that they would meet at the office at 2:30 in the afternoon. A little before noon Clark went to Moon's office and told him to draw up warranty deeds to convey the property which he was to deed to the defendants, and to provide in the deed that the defendants would assume and agree to pay a $2,000 note which was executed by Clark and wife to the Citizens' Bank of Springfield, and secured by second deed of trust on the land which was being conveyed. It is not shown in the case that Moon, who was acting as the scrivener, ever saw the written contract which the parties had entered into on the morning of March 27th. It is shown that Moon drew the warranty deeds in conformity to the way which Clark told him, and that he completed the deeds about noon in all respects except as to the parties grantee; that is, he left a space in which to add A. A. Thomas, wife of W. S. Thomas, in the deed, if so desired.
The evidence shows that several days before Clark and the defendant closed their written contract that Clark talked with Mr. Watkins, cashier of the plaintiff bank, and the party who handled this business for the bank, and told him of the trade, and that he would have to pay Thomas $1,000 in cash. Watkins told Clark that he would not consent to this transfer or make the loan of $1,000 to him, unless he would require Thomas to assume and agree to pay the $2,000 note which the bank held, secured by a second mortgage on the land. On the date that the deeds were drawn by Moon, and before 2:30 in the afternoon, the time at which the parties were to meet in Moon's office, Watkins saw Moon and asked him if he was the lawyer who was drawing up the deeds in the deal between Thomas and Clark. On being told that he was, Watkins told him to put in the deed that Thomas assumed, and agreed to pay the $2,000 note of the Clarks. Moon's reply to him was that he had already drawn the deed, and it was ready for the parties to execute, and that he had drawn it in that way. The evidence further shows that the parties met at Moon's office at the, appointed time, and that, on being asked whether his wife should be placed in the deed as one of the grantees, Thomas assented to it, and Moon put the deed back in the typewriter and added her name. The deed was signed and acknowledged, and Moon handed it to the defendant Thomas. There is some controversy as to whether the defendant at that time read the deed, but we do not think that question is decisive under the facts. Moon and Clark testified that the deed was handed to Thomas, and that he read it over and made some objections about both pieces of land being in one deed, but made no objection to the clause by which he assumed and agreed to pay the $2,000 note. Thomas testified that he did not read the deed, but was under the impression that, there being two pieces of property, it would require two deeds, and was informed that one deed would convey both pieces of property. He testified that he placed the deed in his pocket without reading it, and he is corroborated in this by his witness Breshears, who was also at the meeting. When the deeds were exchanged in Moon's office a check for $1,000 was handed to the defendant, and he went to the plaintiff bank, where he deposited and took credit for the $1,000.
The testimony shows that Watkins, the cashier of plaintiff bank, never talked to Thomas about him assuming this note until several months after the deed was made. The matter was not discussed when the deed was delivered to the defendant in Moon's office, and Clark says that he had told Sanders, the dual agent who was handling the deal, that the defendant must assume the payment of this $2,000 note. We think, however, that the written contract which was made, in which there was no assumption or agreement to pay the note on the part of the defendant, is binding on all parties as to what the contract was up to that date.
The first communication that Watkins ever had with Thomas with reference to this matter was in a letter written to him by Watkins, dated June 3, 1922, in which he advises that there is $28.89 interest due on the $2,000 note, and in this letter he refers to the $2,000 note as that which "you assumed on the farm you traded from Mr. Clark." This letter was received by defendant Thomas and answered by him on June 7th, in which he merely said, "You will find check for $28.89, covering interest on W. E. Clark note as per your favor of the 3d of this month." On the same day Watkins wrote Thomas, acknowledging receipt of the check for $28.89 in payment "of interest to June 1st on loan of W. E. Clark which you assumed."
Defendant testified that he did not record the deed but just took it and laid it on his desk,...
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