Denver Joint Stock Land Bank of Denver, Colo. v. Sherman

• Decision Date: 05 May 1941
• Citation: 152 S.W.2d 702,236 Mo.App. 191
• Parties: DENVER JOINT STOCK LAND BANK OF DENVER, COLORADO, A CORPORATION, APPELLANT, v. MARY E. SHERMAN, ADMINISTRATRIX OF THE ESTATE OF GEORGE W. SHERMAN, DECEASED, AND MARY E. SHERMAN, (INDIVIDUALLY), RESPONDENTS
• Court: Kansas Court of Appeals

152 S.W.2d 702

236 Mo.App. 191

DENVER JOINT STOCK LAND BANK OF DENVER, COLORADO, A CORPORATION, APPELLANT, v. MARY E. SHERMAN, ADMINISTRATRIX OF THE ESTATE OF GEORGE W. SHERMAN, DECEASED, AND MARY E. SHERMAN, (INDIVIDUALLY), RESPONDENTS

Court of Appeals of Missouri, Kansas City

May 5, 1941

Rehearing Denied 236 Mo.App. 191 at 204.

Appeal from the Circuit Court of Platte County.--Hon. R. B Bridgeman, Judge.

AFFIRMED.

Judgment affirmed.

James H. Hull, John W. Coots, Jr. and David R. Clevenger for respondents.

(1) The relinquishment by mortgagor of claims to the right to redeem right to possession and right to the crops on mortgaged lands and the assignment by mortgagor of his interest in a lease and the avoidance thereby of the expense, trouble and delay of litigation by mortgagee is good consideration for the agreement by mortgagee to accept the same in compromise and satisfaction of balance claimed by it as due on mortgage notes. 75 n, o, s, of the National Bankruptcy Act as amended by the Act of August 28, 1935. Duvall v. Duncan, 111 S.W.2d 89, 92; State ex rel. Isaacson v. Trimble et al., 72 S.W.2d 111, 113; Gulfport Wholesale Lumber Co. v. Boeckler Lumber Co., 287 S.W. 799, 800; Harlin & Griffin v. Missouri State Highway Commission, 51 S.W.2d 553, 555; Sheppard v. Travelers Protective Ass'n of America, 129 S.W.2d 528, 530; Nelson v. Diffenderffer, 178 Mo.App. 48, 54, 55; In re Mosbacher, 31 S.W.2d 225, 226; Landers v. Fox, 209 S.W. 287, 288; Expansion Realty Co. v. Geren, 185 Mo.App. 440, 461. Reilly v. Chouquette, 18 Mo. 220, 226; Wood v. Kansas City Home Tel. Co., 223 Mo. 537, 565; Evans v. Evans, 28 S.W.2d 416; Valle v. Picton, 16 Mo.App. 178, 184; 1 C. J. S. 473, par. 4, 488, par. 20a, 498, par. 28, 492, par. 23, 505, 509, par. 306, 515, 516, 517, 15 C. J. S. 725, par. 96, 728, par. 11, 730; Pfiffner v. Kroger Grocery Co., 140 S.W.2d 179, 182; Brown v. Corn Products Refining Co., 55 S.W.2d 706; Gunnell v. Emerson, 80 Mo.App. 322, 326; Lane v. Morris, 777 Col. 343, 237 P. 154; Carson v. Bradford, 91 Col. 434, 15 P. 977; Sec. 5052 of the Compiled Laws of Colorado, 1921, et seq.; Sec. 6369 of the Compiled Laws of Colorado, 1921; Elmira Mechanic Society v. Stanchfield, 160 F. 811; Fish v. East, 114 F.2d 177; Farmers Union Mutual Protective Ass'n v. Bank, 281 P. 366. (2) The parol testimony did not violate the parol evidence rule. (a) Parol testimony is admissible to show a distinct collateral contemporaneous agreement. 22 C. J., p. 1245, par. 1662; Brown v. Bowen, 90 Mo. 190; Greening v. Steele, 122 Mo. 294; Finks v. Hathaway, 64 Mo. 188, 189; Bowers v. Bell, 193 Mo.App. 218, 219; Roe v. Bank of Versailles, 167 Mo. 427; Proctor v. Home Trust Co., 221 Mo.App. 584; Broadway Bank v. Schlater, 17 S.W.2d 591; Wind v. Bank of Maplewood, 58 S.W.2d 335; Goodspeed v. Grand National Bank, 46 S.W.2d 913, 914. (b) Parol evidence is admissible to show the true contract. 22 C. J., Par. 714; (c) A written instrument executed pursuant to a prior verbal contract may be substantiated by parole evidence. 22 C. J., par. 715; (d) The consideration in a written instrument is not conclusive and may be inquired into by parole or other extrinsic evidence. 22 C. J., par. 1555; Heagy v. Cox, 191 Mo.App. 383, 384; Goodman v. Griffith, 238 Mo. 714; McDaniel v. United Railways, 165 Mo.App. 678; St. Louis Auto Parts & Co. v. Indiana Salvage Co., 89 S.W.2d 136. (3) Instruction given on behalf of defendants does not go beyond the pleadings. (a) Defendants' main instruction does not misstate the law, but properly submitted the defense alleged in the answer and sustained by the proof, Duval v. Duncan, 111 S.W.2d 89, 92; And authorities cited I supra. (b) Defendants' main instruction does not go beyond the pleading, a written assignment mentioned in said instruction being also alleged in defendants' answer. (4) There is no reversible error in refusal of trial court to discharge jury because of alleged prejudicial statements in argument to jury. Crews v. Kansas City Public Service Co., 111 S.W.2d 54, 62; Aly v. Terminal Railroad Association of St. Louis, 119 S.W.2d 363, 367; Burow v. Red Line Service, Inc., 122 S.W.2d 919, 921; Douglas v. Lang, 124 S.W.2d 642, 647, 648.

Lancie L. Watts and Leo F. Sebus for appellant.

(1) The relinquishment by a mortgagor of the claims to the right to redeem, right to the possession and the right to the crops on the mortgaged premises, after the period of redemption has expired, is no consideration for an agreement by the mortgagee to cancel the balance due on the mortgage notes. Sec. 1, Act of May 3, 1929, p. 538, '29 Session Laws of Colo. Wendover v. Baker, 121 Mo. 273, 293, 25 S.W. 918; Dubois v. Bowles (Colo.), 69 P. 1067, 1072; Ross v. Nichols (Colo.), 138 P. 1013, 1014; Canton Trust Co. v. Durrett, 320 Mo. 1208, 9 S.W.2d 925, 929; Bank v. Bradley, 315 Mo. 811, 288 S.W. 774; Atlantic Joint Stock Land Bank of Raleigh v. Latta, 162 S.E. 68, (Sup. Ct. of S. C. 1932), 69; 13 C. J. 351, par. 207, 208, 352, par. 209; G. M. A. C. v. Brown, 38 P.2d 482, (Calif. 1934), 484; Witherspoon v. Green (Tex. 1925), 274 S.W. 170, 171; Swaggard v. Hancock, 25 Mo.App. 596, 606; Corbyn v. Brokmeyer, 84 Mo.App. 649, 653; 13 C. J. 380, 375, 376; U. S. v. Golden, 34 F.2d 367, 374; Penn Mutual Life Ins. Co. v. Forcier, 24 F.Supp. 851, 854, 856; 17 C. J. S. 461; Taylor v. Weeks, 129 Mich. 233, 88 N.W. 466; Smith v. Rembaugh, 21 Mo.App. 390. (2) Parol testimony is inadmissible to vary the terms of a written contract. Lunt v. Biehl, 159 Mo.App. 361, 140 S.W. 757; Sharkey v. McDermott, 91 Mo. 647, 4 S.W. 107; Van Meter v. Poole, 119 Mo.App. 296, 95 S.W. 960; Crossan v. Noll, 120 S.W.2d 189, 191; Abrahams v. Osterholm, 136 S.W.2d 86, 92. (3) Instructions cannot go beyond the pleadings. Wendover v. Baker, 121 Mo. 273, 293, 25 S.W. 918; Atlantic Joint Stock Land Bank of Raleigh v. Latta, 162 S.E. 68; G. M. A. C. v. Brown (Calif. 1934), 38 P.2d 482; Swaggard v. Hancock, 25 Mo.App. 596; Rucker v. Alton R. Co., 123 S.W.2d 24, 343 Mo. 929, 934; Cochran v. Lumber Co., 132 S.W.2d 32, 38. (4) Appeals to prejudice or sympathy in the final argument are reversible error. Bishop v. Hunt, 24 Mo.App. 373; Norris v. Ry. Co., 239 Mo. 695, 144 S.W. 783; Nichols & Shepherd Co. v. Metzger, 43 Mo.App. 607; Smith v. Ry. Co., 31 S.W.2d 105, 107.

SHAIN, P. J. Cave, J., concurs; Bland, J., concurs in separate opinion.

OPINION

SHAIN, P. J.

--This is an action against the makers of a mortgage note for balance due thereon after foreclosure.

Plaintiff's petition is in due form. Defendants answer by general denial and allege a compromise agreement in full satisfaction of said note. Plaintiff before trial filed a general denial. However at the close of all of the evidence, plaintiff by leave of court filed an amended reply.

The issues in this case are clearly defined by defendants' answer and the reply filed by plaintiff at close of the evidence.

Defendants' answer is as follows:

"Come now the defendants herein and for their answer to plaintiff's petition herein as finally amended state:

"1. Defendants deny each and every allegation therein contained.

"2. For further answer defendants state that the promissory note set out in plaintiff's petition has been fully paid, compromised and settled under and by virtue of the terms of a comprise agreement entered into by defendants and plaintiff on April 9, 1937; that by said agreement plaintiff promised and agreed, in consideration of the relinquishment by defendants of their claims of the right to redeem certain lands in Colorado and of the right to the possession and to the crops thereon, and in further consideration of the benefit accruing to plaintiff in not being required to have recourse to court action in attempting to enforce its claim to the right to have a receiver appointed and thereby saving to plaintiff the expense, inconvenience and delay and uncertainty attendant upon such court action, to accept from defendants in full payment, compromise and satisfaction of all their liability upon said note the surrender of the claim of said defendants to the rights to redeem said lands and to the possession and crops thereon; and said defendants promised and agreed, in consideration of the promise and agreement of plaintiff as above set out, to surrender all their claims of redemption on said lands and to the possession thereof and the crops thereon; that said agreement has been fully executed, that defendants surrendered their claims of the right to redeem said lands and to the possession thereof and executed an assignment of their claim to the crops thereon, and plaintiff was thereby benefited in that it was thereby saved the trouble, delay, expense and uncertainty of an action to attempt to enforce its claim to the right to have a receiver appointed, and plaintiff accepted said surrender of said claims and said assignment of said crops in full payment, satisfaction, compromise and discharge of all its claims against defendants upon said note.

"Wherefore, having fully answered, defendants pray to be dismissed with their costs."

Plaintiff's amended reply is as follows:

"Comes now the plaintiff and for its first amended reply to defendants' first amended answer, and denies each and every allegation therein contained.

"And for its further reply to said answer, plaintiff states that on September 9, 1936, there was in force and effect Section 1 of the Act of May 3, 1929, duly enacted by the Legislature of the State of Colorado, printed at page 538 of the Session Laws of Colorado of 1929, by which it is provided that:

"'Section 1. Within six months after the date of the sale of real estate by virtue of any foreclosure of a mortgage, trust deed or other lien, or by virtue of an execution and levy, the owner...