Duvall v. Duncan

• Decision Date: 17 December 1937
• Citation: 111 S.W.2d 89,341 Mo. 1129
• Parties: W. F. Duvall and Regina Duvall, Appellants, v. W. E. Duncan and Myrtle Duncan
• Court: Missouri Supreme Court

111 S.W.2d 89

341 Mo. 1129

W. F. Duvall and Regina Duvall, Appellants, v. W. E. Duncan and Myrtle Duncan

Supreme Court of Missouri

December 17, 1937

Appeal from Bates Circuit Court; Hon. C. A. Calvird, Judge.

Reversed and remanded (with directions).

L J. Bishop, D. C. Chastain and Patterson, Chastain Graves & Smith for appellants.

(1) The court erred in refusing instructions A and B offered by plaintiffs, and erred in submitting the issue of want of consideration to the jury, because (a) The note and deed of trust given on June 9, 1933, dated June 1, 1933, were based upon a sufficient consideration. Sec. 2654, R. S. 1929; Mallanphy v. Riley, 10 Mo. 489; Nelson v Diffenderffer, 178 Mo.App. 48; Starr v. Crenshaw, 279 Mo. 344, 213 S.W. 811; Thompson v. McCune, 333 Mo. 758, 63 S.W.2d 41; Glassbrenner v. Morgan, 296 S.W. 201; Rudd v. Rudd, 318 Mo. 935, 2 S.W.2d 585; Sikes v. Riga, 221 Mo.App. 152, 297 S.W. 727. (b) The extension of the debt, abandonment of the foreclosure sale and cancellation of defendants' notes furnish a consideration for the note and deed of trust in controversy. 13 C. J. 342; 6 R. C. L. 658; Woodard v. Householder, 315 Mo. 1155, 289 S.W. 571; Hughes v. Foltz, 142 Mo.App. 513; Given v. Corse, 20 Mo.App. 132; Chenoweth v. Pac. Express Co., 93 Mo.App. 185; Union Bank of Georgetown v. Geary, 5 Peters, 99; In re All Star Feature Corp., 232 F. 1004. (c) The note and deed of trust dated as of June 1, 1933, were a new contract between the parties and were not subject to the defenses, if any, against the prior indebtedness. Siemans & Halske Electric Co. v. Ten Broek, 97 Mo.App. 173; Zuendt v. Doerner, 101 Mo.App. 528; Dorris v. Cronan, 149 Mo.App. 177; Citizens Natl. Bank v. Romboner, 194 Mo.App. 690; Cantley v. Plattner, 228 Mo.App. 411, 67 S.W.2d 125. (d) The note and deed of trust of June 1, 1933, were the result of a compromise between the parties and as such were based upon a valid consideration. School District of Barnard v. Matherly, 90 Mo.App. 403; Marshall & Michel v. Larkin's Sons, 82 Mo.App. 635; Downing v. Lee, 98 Mo.App. 604; Hanson v. Yeary, 159 Mo.App. 1; Rogers v. Merc. Adj. Publishing Co., 118 Mo.App. 1; Patt v. Leavel, 161 Mo.App. 242; Goodman v. Freie, 214 Mo.App. 642; Dillon v. Ennis, 205 S.W. 191; Wood v. K. C. Home Tel. Co., 223 Mo. 537; State ex rel. Isaacson v. Trimble, 335 Mo. 213, 72 S.W.2d 111. (e) And the compromise and settlement by a unilateral contract is valid. The giving of the note and trust deed by defendants and acceptance by plaintiffs, and release of the prior lien, are sufficient. Allen West Comm. Co. v. Richter, 286 Mo. 691, 228 S.W. 827; Russell v. Wyant, 214 Mo.App. 377. (f) A consideration arose from the abandonment of the foreclosure proceeding and the giving of the new note and deed of trust and the cancellation of the old note and deed of trust, and, since all these matters appear from the admissions of the defendants, plaintiffs were entitled to a directed verdict. Sturdivant Bank v. Houck, 215 S.W. 758; Janes v. Levee District No. 2, 183 S.W. 697. (2) The court erred in failing to peremptorily instruct for the plaintiffs and in submitting the issue of want of consideration to the jury, because the defendants had full knowledge of all facts as to the alleged lack of consideration for the original trust deed indebtedness and the giving of the note and deed of trust of June 1, 1933, estops them from setting up want of consideration therein. Luft v. Strobel, 322 Mo. 955, 19 S.W.2d 721; Cantley v. Plattner, 228 Mo.App. 411, 67 S.W.2d 125; Hensinger v. Dyer, 147 Mo. 219; Zuendt v. Doerner, 101 Mo.App. 528; Enslen v. Mechanics Natl. Bank, 255 F. 527.

David B. Logsdon, H. E. Finch and B. R. McGuire for respondents.

(1) The court correctly refused to give instructions A and B offered by the plaintiffs at the close of all the evidence for the reason that there was sufficient evidence to submit the case to the jury on the issue of want of consideration. Comings v. Leedy, 114 Mo. 478; Briscoe v. Kinealy, 8 Mo.App. 81; Long v. Towl, 42 Mo. 545; State ex rel. Isaacson v. Trimble, 335 Mo. 213, 72 S.W.2d 114; Ford v. Ford Roofing Products Co., 285 S.W. 541; Barton v. Peters, 89 S.W.2d 46. (2) The court did not err in giving Instruction 6 on behalf of the defendants for the reason there was sufficient evidence in the case to submit this issue to the jury. Further this instruction cannot be prejudicial in any manner to the plaintiffs for the reason that instructions submitted by the plaintiffs submitted the issue of want of consideration for the jury to determine. Luff v. Strabel, 19 S.W.2d 730; Budd v. Budd, 97 S.W.2d 149. (3) The court correctly refused to give Instruction D offered by the plaintiffs for the reason that the judgment of the circuit court of Bates County on June 9, 1933, was a case between different parties than the parties to this action. Furthermore the refusal to grant a temporary injunction is not res judicata for the reason it is not a final judgment. State ex rel. Green v. Brown, 31 S.W.2d 217; M. K. & T. Ry. Co., v. Am. Surety Co., 236 S.W. 657, 291 Mo. 92. (4) The court correctly ruled in refusing to give instructions E and F on behalf of the plaintiffs for the reason that proper instructions submitted by the plaintiffs under G and K submitted the same theory, and for the further reason that under the evidence in the case the question as to whether or not there was consideration for the note and deed of trust of June 1, 1933, was an issue of fact for the jury to determine. Luft v. Strobel, 19 S.W.2d 730; Budd v. Budd, 97 S.W.2d 149. (5) The court did not err in refusing to sustain plaintiffs' motion for new trial for the reason that the evidence was sufficient to make an issue for the jury's determination, and the jury having determined those issues there being no error, the verdict should be permitted to stand. 3 R. C. L. 172; Cantley v. Plattner, 67 S.W.2d 130; Luft v. Strobel, 19 S.W.2d 730; Woods v. Ogden, 102 S.W.2d 648. (6) The verdict of the jury is amply supported by the evidence, not only of the defendants, but also by the evidence submitted on behalf of plaintiffs and therefore the court did not err in refusing to set aside the verdict of the jury for this reason. Clay v. Owens, 93 S.W.2d 914; Woods v. Ogden, 102 S.W.2d 648. (7) The court did not err in admitting evidence on the part of defendants with respect to the consideration of the note secured by the first deed of trust. Further plaintiffs have under the rules abandoned any error under this assignment for the reason that plaintiffs have failed to set forth under the assignments of error the alleged error complained of. Clay v. Owen, 93 S.W.2d 914; Briscoe v. Merchants & Miners Bank, 102 S.W.2d 751.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Action in two counts, the first in ejectment, the second to quiet title. The land described in both counts is the same. The case was tried to a jury. The verdict was for defendants below, respondents here, on both counts, and judgment went accordingly. Plaintiffs appealed.

Plaintiffs (husband and wife) claim title under a trustee's deed to them, made pursuant to sale under a deed of trust dated June 1, 1933, acknowledged June 9, 1933, securing a note of $ 2650, dated June 1, 1933, signed by the Duncans, husband and wife. No question is raised as to the regularity of the foreclosure proceedings or that the trustee's deed is not sufficient on its face to convey title. After the foreclosure sale defendants, theretofore owners and in possession of the lands in question, refused to surrender possession and this suit followed. The only question presented on this appeal is whether or not there was a valid consideration for said $ 2650 note. Defendants claim said note was without consideration and that the deed of trust securing it was therefore without consideration and invalid and the sale thereunder unauthorized and void.

The note in question was held at the time of the foreclosure by W. F. Duvall, who had acquired it from the Farmers Bank of Bates County, the named payee. The question of consideration requires a statement of facts leading up to the giving of the note.

In May, 1927, W. F. Duvall was president of said bank, Homer Duvall was an active officer thereof. Defendant W. E. Duncan was and for some years had been a customer of the bank, transacting his business with the bank, he says, through Homer Duvall as the bank's representative. He was largely indebted to the bank, the bank records showing a then total indebtedness of $ 4400, part of which was secured by chattel mortgage but the major part unsecured. He and his wife also owed debts to other parties secured by deeds of trust on property not here involved. It appears that foreclosure of a deed or deeds of trust on said other properties was being threatened by the holder or holders thereof -- not by said Farmers Bank.

In this situation on May 11, 1927, the Duncans executed two notes, one for $ 2000 due in two years and one for $ 3000 due in three years, payable to the bank, and as security therefor a deed of trust on the property here in question. The $ 3000 note was immediately turned over to Mrs. Duncan. It was never claimed by the bank as an asset or as collateral and for practical purposes may be treated as having dropped out of the case. The $ 2000 note was retained by the bank, which has at all times since claimed, as do plaintiffs herein, that the bank took and held that note as collateral for Duncan's unsecured debts to it.

The testimony of the Duncans was to the effect that said $ 2000 note was not given as collateral and was not to be considered as belonging to the bank but was left with the bank or with Homer Duvall to keep for them -- the Duncans -- sort of as...