Collier v. Smith, No. 7468

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSTONE; McDOWELL, P. J., and RUARK
Citation292 S.W.2d 627
PartiesJ. A. COLLIER and Nona Collier, Plaintiffs-Respondents, v. L. Q. SMITH and Sally J. Smith, Defendants-Appellants.
Docket NumberNo. 7468
Decision Date23 July 1956

Page 627

292 S.W.2d 627
J. A. COLLIER and Nona Collier, Plaintiffs-Respondents,
v.
L. Q. SMITH and Sally J. Smith, Defendants-Appellants.
No. 7468.
Springfield Court of Appeals, Missouri.
July 23, 1956.

Little & Enfield, Bentonville, Ark., for defendants-appellants.

Gordon R. Boyer, Lamar, for plaintiffs-respondents.

STONE, Judge.

In this court-tried case, defendants appeal from an adverse judgment of $6,713.90, declared to be a lien against certain real estate owned by them in Barton County, Missouri. The record reflects an involved state of facts which we detail only insofar as is necessary for determination of our appellate jurisdiction.

Page 628

On December 31, 1952, defendants entered into a 'contract and escrow agreement' (hereinafter called the escrow agreement) with Mrs. Bertha Crider, by which the parties agreed 'to trade equities' in certain tourist courts. Pursuant to this escrow agreement, defendants executed a deed to the Centennial Courts at Gainesville, Texas (subject to two liens), which was deposited with the First State Bank of Gainesville, as escrow agent, and was not to be delivered to Mrs. Crider until she 'pays off the second lien in the approximate sum of $10,500 on the Alma Plaza Courts of Alma, Arkansas.' Having taken title to the Alma Plaza Courts (also subject to two liens), defendants thereafter, to-wit, on May 6, 1953, entered into a 'real estate contract' with plaintiffs, by the terms of which plaintiffs traded a 160 acre farm in Barton County, Missouri (subject to two deeds of trust), and a 155 acre farm on Bull Shoals Lake (free of liens) to defendants in exchange for the Alma Plaza Courts, with plaintiffs 'taking over' the escrow agreement; and, on May 9, 1953, defendants executed a written 'assignment' to plaintiffs of 'all our (defendants') right, title and interest' in and to the escrow agreement.

While plaintiffs were taking possession of the Alma Plaza Courts on May 26, 1953, a representative of Mrs. Crider called over long distance from Texas and talked with both plaintiffs and defendants concerning satisfaction of the second mortgage on the Alma Plaza Courts and release to Mrs. Crider of the deed to the Centennial Courts, still being held by the escrow agent at Gainesville, Texas. What was said in this telephone conversation is not clear, and what plaintiffs thereafter told defendants is in sharp dispute. According to defendants, plaintiffs told them (defendants) 'to go to Texas and release that escrow'; and, when defendants asked 'for written authority to release those papers down there,' plaintiffs said 'it wasn't necessary.' On the other hand, plaintiffs insisted that, although they were willing for the deed to the Centennial Courts to be delivered by the escrow agent to Mrs. Crider when (as the escrow agreement provided) she 'pays off the second lien' on the Alma Plaza Courts, defendants were not authorized to release the deed to Mrs. Crider unless and until she paid such 'second lien' in full. In any event, defendants immediately started for Texas and, on the following day, signed a written authorization to the First State Bank of Gainesville, the escrow agent, 'to release (the) escrow agreement' and deliver 'all papers to Mrs. Crider,' upon which the escrow agent, not having been notified of defendants' 'assignment' of the escrow agreement to plaintiffs, delivered to Mrs. Crider the deed to the Centennial Courts. Defendants' explanation was that they had signed the authorization to the escrow agent in the office of a realtor representing Mrs. Crider, then 'on a trade * * * to sell the Centennial Courts,' in reliance upon Mrs. Crider's promise that, although she did not have 'the money in hand that evening,' she would pay the 'second lien' on the Alma Plaza Courts in full the following morning. However, Mrs. Crider paid only $5,000 on this 'second lien,' leaving an unpaid balance thereon which, with interest, amounted to $6,713.90 at the time of trial.

By warranty deed executed on September 26, 1953, but not delivered until November 2, 1953, plaintiffs conveyed the Alma Plaza Courts to J. J. McBride and Estella McBride. Plaintiffs said that the McBrides were 'accepting the escrow agreement * * * just as we accepted it'; but, when plaintiffs and the McBrides heard on September 26, 1953 (all of them for the first time, as plaintiffs testified), that 'the escrow agreement had been released,' the McBrides refused to take an 'assignment' of the escrow agreement so, as subsequently embodied in an instrument dated September 29, 1954, plaintiffs agreed to 'stand good for any second mortgage on the Alma Plaza Courts.'

Plaintiffs sought and obtained judgment on the theory, as stated in their 'petition for damages and equity,' that 'due to the

Page 629

wrongful and fraudulent acts of the defendants, they (plaintiffs) have become liable to the...

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6 practice notes
  • State ex rel. State Highway Commission v. Camden County, No. 8332
    • United States
    • Court of Appeal of Missouri (US)
    • August 23, 1965
    ...v. Mack, Mo., 281 S.W.2d 872, 873(1); Morrow v. Caloric Appliance Corp., Mo.App., 362 S.W.2d 282, 283(1); Collier v. Smith, Mo.App., 292 S.W.2d 627, 630-631(4)]; and, with our preliminary consideration leaving us in doubt concerning appellate jurisdiction, we treated the stipulation of coun......
  • Herndon v. Ford, No. 9042
    • United States
    • Court of Appeal of Missouri (US)
    • August 5, 1971
    ...Loan Ass'n v. Miller, Mo., 461 S.W.2d 876, 878--879; In re In Interest of G_ _, Mo.App., 455 S.W.2d 3, 7(4); Collier v. Smith, Mo.App., 292 S.W.2d 627, It has long been recognized and settled that a final judgment 'must purport to be the actual and absolute sentence of the law, as distingui......
  • Hance v. Johnson, Stephens & Shinkle Shoe Co., No. 7642
    • United States
    • Court of Appeal of Missouri (US)
    • October 23, 1957
    ...ten days after the judgment or order appealed from becomes final.' The right of appeal is purely statutory [Collier v. Smith, Mo.App., 292 S.W.2d 627, 629(1), and cases there collected]; and, although courts have discretionary power to extend the time for the doing of many acts, they may no......
  • Scheid v. Pinkham, No. 8386
    • United States
    • Court of Appeal of Missouri (US)
    • April 14, 1965
    ...Commission v. Hammel, Mo., 290 S.W.2d 113(4); McNabb v. Payne, Mo.App., 280 S.W.2d 864, and cases cited; Collier v. Smith, Mo.App., 292 S.W.2d 627. But one of the exceptions to the general statement is that if the finding and judgment on the other issues in the case 'necessarily excludes an......
  • Request a trial to view additional results
6 cases
  • State ex rel. State Highway Commission v. Camden County, No. 8332
    • United States
    • Court of Appeal of Missouri (US)
    • August 23, 1965
    ...v. Mack, Mo., 281 S.W.2d 872, 873(1); Morrow v. Caloric Appliance Corp., Mo.App., 362 S.W.2d 282, 283(1); Collier v. Smith, Mo.App., 292 S.W.2d 627, 630-631(4)]; and, with our preliminary consideration leaving us in doubt concerning appellate jurisdiction, we treated the stipulation of coun......
  • Herndon v. Ford, No. 9042
    • United States
    • Court of Appeal of Missouri (US)
    • August 5, 1971
    ...Loan Ass'n v. Miller, Mo., 461 S.W.2d 876, 878--879; In re In Interest of G_ _, Mo.App., 455 S.W.2d 3, 7(4); Collier v. Smith, Mo.App., 292 S.W.2d 627, It has long been recognized and settled that a final judgment 'must purport to be the actual and absolute sentence of the law, as distingui......
  • Hance v. Johnson, Stephens & Shinkle Shoe Co., No. 7642
    • United States
    • Court of Appeal of Missouri (US)
    • October 23, 1957
    ...ten days after the judgment or order appealed from becomes final.' The right of appeal is purely statutory [Collier v. Smith, Mo.App., 292 S.W.2d 627, 629(1), and cases there collected]; and, although courts have discretionary power to extend the time for the doing of many acts, they may no......
  • Scheid v. Pinkham, No. 8386
    • United States
    • Court of Appeal of Missouri (US)
    • April 14, 1965
    ...Commission v. Hammel, Mo., 290 S.W.2d 113(4); McNabb v. Payne, Mo.App., 280 S.W.2d 864, and cases cited; Collier v. Smith, Mo.App., 292 S.W.2d 627. But one of the exceptions to the general statement is that if the finding and judgment on the other issues in the case 'necessarily excludes an......
  • Request a trial to view additional results

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