Cress v. Blodgett

• Decision Date: 30 April 1877
• Citation: 64 Mo. 449
• Parties: GEORGE CRESS, Respondent, v. E. A. BLODGETT, Appellant.
• Court: Missouri Supreme Court

64 Mo. 449

GEORGE CRESS, Respondent,

v.E. A. BLODGETT, Appellant.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Johnson County Circuit Court.

Waters & Winslow, for Appellant, cited: Logan vs. Tibbett, 4 Greene, [Iowa] 389; Pillow vs. Brown, 26 Ark. 240; Edgell vs. Tucker, 40 Mo. 526; 2 Pars. Contr., p. 529; Bank of Columbia vs. Hajner, 1 Pet. 465; Freeland vs. Mitchell, 8 Mo. 487; Cunningham vs. Morrell, 10 Johns. 203; Wadlington vs. Hill, 10 S. & M. [Miss.] 560; Pegues vs. Moby, 7 S. & M. [15 Miss.] 340; Liddell vs. Sims, 9 S. & M. [17 Miss.] 612; Doe vs. Thompson, 2 Foster [[[[[N. H.] 217; Wellman vs. Dismukes, 42 Mo. 101; Dietrich vs. Franz, 47 Mo. 85; Hunt vs. Livermore, 5 Pick. [Mass.] 395; Kane vs. Hord, 13 Pick. [[[[Mass.] 281; Denny vs. Kile, 16 Mo. 451; Johnson vs. Wygant, 11 Wend. 48; Kaye vs. Dutton, 7 M. & G. 807; 2 Am. Lead. Cases [4 ed.,] pp. 185, 200, 201, 202, 242, 243.

A. B. Jetmore, for Respondent, cited: Rogers vs. Gosnell, 58 Mo. 589; Tate vs. Barcroft, 1 Mo. 163; Dube vs. Smith, Id. 313; Wear vs. McCorkle, Id. 588; Wathen vs. English, Id. 746; Crocker vs. Mann, 3 Mo. 472; Orth vs. Dorschlein, 32 Mo. 366.

HENRY, Judge, delivered the opinion of the court.

The plaintiff sued defendant on a promissory note, executed by defendant on the 3d day of May, 1872, for $520, payable to Wells H. Blodgett on the 1st day of September, 1872, and alleged in the petition that it was assigned and delivered to him on the day of its date.

There was a verdict and judgment for the plaintiff from which defendant has appealed to this court.

The answer denies that the note was ever assigned and delivered to plaintiff, but alleges that plaintiff, by fraud, obtained possession of the same from said Wells H. Blodgett, with whom it had been left by defendant to be delivered to plaintiff when one James Robie should have executed a deed to defendant for his undivided half of a lot of ground in the town of Warrensburg.

The issue made as to the delivery of the note was found against defendant, and as no complaint is made of declarations of law on that subjeet, the finding of the court will not be disturbed, and we shall assume, in the consideration of the other questions arising in the case, that the note in question was, at the date of its execution, delivered to plaintiff.

The facts--about which there is no controversy--are, that defendant and one James Robie were partners in the drug business, at Warrensburg, Mo., and on the 26th day of October, 1871, entered into a written agreement for the dissolution of their co-partnership and settlement of its affairs, and also for the dissolution and settlement of another co-partnership for the manufacture of ““Missouri Baking Powders,” composed of Robie and defendant and one Simmons, who was also a party to said agreement; but inasmuch as the stipulations in regard to this latter co-partnership have no bearing upon this case, they will receive no further notice. In that agreement it was stipulated, between said Robie and defendant, that Robie should sell and Blodgett buy the interest of the former in the lot before mentioned, at a price to be fixed by disinterested parties to be selected by them. They owned said lot jointly.

On the 6th day of December, 1876, Robie and Blodgett entered into another written agreement which, reciting the dissolution of said firm, and the existence of a mortgage on the lot, executed by said Robie to Johnson county, on the 12th day of December, 1867, for $601, and a subsequent deed of trust on the lot, executed by said Robie to plaintiff for $545, and that under the written agreement of October 26th, 1871, the price of Robie's interest in the lot had been fixed at $775, contains the following stipulation: “In consideration of the fact above mentioned, I, the said James Robie, do hereby agree to grant, bargain and sell to said E. A. Blodgett, all my right, title and interest in and to the said real estate aforesaid, for the consideration of $775.00. And the said E. A. Blodgett, in consideration thereof, hereby agrees and binds himself to assume and pay off said notes of said Robie to the county of Johnson and George Cress,” with interest, amounting in the aggregate to the sum of $1,146.45, and for the excess of that indebtedness over the price of the lot, $371.45, it was agreed that Blodgett should retain it out of Robie's interest in the notes and accounts owing to the firm, which he held for collection. Subsequently Cress and Blodgett met, and by an arrangement between them, an account owing by Cress, to Robie & Blodgett for drugs, was paid by deducting it from Robie's said indebtedness to Cress, and thereupon Blodgett executed the note in question for the balance, in compliance with the agreement made with Robie. After the execution of the note, the interest of Robie in the lot in question was advertised and sold under the mortgage to Johnson county, and purchased by Wells H. Blodgett, Robie's security on the note, who paid for it the amount of the note and interest. Plaintiff still holds the note against Robie, and has not entered satisfaction of his deed of trust.

Defendant, in his answer, relies upon the above facts to show that there was no consideration for the note, or that the consideration has failed, and contends that before plaintiff can recover against him on the note, he is bound to deliver to defendant a deed from Robie for the lot in question.

The undertakings of vendor and vendee are ordinarily dependent, and to entitle the...