Dailey v. Jessup

• Citation: 72 Mo. 144
• Parties: DAILEY v. JESSUP et al., Appellants.
• Decision Date: 31 October 1880
• Court: Missouri Supreme Court

72 Mo. 144

DAILEY

v.JESSUP et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

Belch & Silver and H. B. Giddings for appellants, cited in argument Story's Eq., (12 Ed.) §§ 120, 125; Fitzgerald v. Peck, 4 Littell 125; Sparks v. White, 7 Hump. 86; Griffith v. Townley, 69 Mo. 21; Green v. Morris, etc., R. R., 12 N. J. Eq. 165.

HOUGH, J.

On the 11th day of April, 1868, the defendant purchased a tract of land from one Cowan for $4,000, $2,000 of which he paid in eash, and for the balance executed two notes for $1,000 each, payable respectively in one and three years, and received from said Cowan a bond for title. The note first due was paid at maturity. Before maturity of the remaining note, Cowan made a general assignment of all his property, for the benefit of his creditors, to the plaintiff. On the 17th day of August, 1871, the defendant tendered to the plaintiff, as assignee, the full amount of principal and interest then due on his note and demanded a deed, which plaintiff refused. On the 11th day of April, 1875, payment of the amount due on his note was demanded of the defendant, by the plaintiff's attorney, and the defendant offered to pay the same, excluding the interest from the date of the tender. The bill of exceptions states that plaintiff's attorney “insisted that the defendant, Solomon Jessup, was liable for the interest during said time, and finally prevailed on said Jessup to execute his note with Wm. R. King as his security, for the balance of said second note and ten per cent interest from the 17th day of August, 1871, to the 14th day of April, 1875.” The deed was then executed and delivered, and the bond canceled. The note executed by the defendants, and now sued on, was for $702, payable thirty days after April 14th, 1875, the date of its execution. On the 20th day of May, 1875, the defendant, Jessup, paid on this note the sum of $300, and on the 20th day of August following, the further sum of $100. The present suit is brought to recover the balance due on said note, which sum is less than the interest which the defendant, Jessup, contended he was not liable for, and he now asks to be relieved from liability for said balance, on the ground that it represents the interest for which he was not liable, and because he was mistaken as to the law when he executed the note sued on.

Conceding that the tender made stopped the running of interest, the defendant is...