Emerson-Brantingham Implement Co. v. Sawyer

• Decision Date: 08 July 1922
• Docket Number: No. 2764.,2764.
• Citation: 242 S.W. 1007,210 Mo. App. 535
• Parties: EMERSON-BRANTINGHAM IMPLEMENT CO. v. SAWYER et el.
• Court: Missouri Court of Appeals

242 S.W. 1007

210 Mo. App. 535

EMERSON-BRANTINGHAM IMPLEMENT CO. v. SAWYER et el.

No. 2764.

Springfield Court of Appeals. Missouri.

July 8, 1922.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by the Emerson-Brantingham implement Company against J. F. Sawyer and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Telma S. Heffernan and Wright & Ruffin, all of Springfield, for appellant.

Collins & Halloday, of Springfield, for respondents.

COX, P. J.

Action upon promissory notes. Trial by jury, verdict for defendants, and judgment against plaintiff for costs, and it has appealed.

In 1914 J. F. Sawyer bought certain sawmill machinery from plaintiff, and in payment therefor he and his son Jim Sawyer executed the notes in suit, and secured same by a chattel mortgage on the machinery purchased and some other property. In March, 1917, Jim Sawyer and his brother, John, gave new notes to plaintiff for the amount then due and unpaid on the other notes, and gave a chattel mortgage on the same property to secure them. The defense in this suit is based on the claim that these new notes by Jim and John Sawyer were a novation of the old debt, and that the notes in suit were paid and discharged by these later notes. This contention is denied by plaintiff.

The burden of proof on this issue was upon defendants, and, the verdict having been in their favor, we must look to their testimony to determine whether the evidence is sufficient to sustain the verdict. Tile testimony of defendants' witnesses tended to establish the following facts: J. F. Sawyer, the father, purchased the machinery in the first instance, and he and his son Jim signed the notes sued upon. The chattel mortgage to plaintiff to secure these notes covered a horse that belonged to Jim, and we infer that he owned some interest in the mill, though the amount of that interest is not shown. Before the notes of Jim and John were given in March, 1917, John had been talking of buying out his father in the sawmill, but had not done so. That on March 20, 1917, when Jim and John gave their notes to plaintiff, it was agreed between them and plaintiff that the old notes signed by J. F. Sawyer, the father, and Jim Sawyer, were to be returned to the makers, but this was never done. That the father knew nothing about this new transaction by Jim and John giving their notes and executing a chattel mortgage on the machinery to secure them until a short time after the transaction was completed. The father, when informed of what they had done, assented to it, and said it was all right. The agent of plaintiff, who had taken the new notes, testified that they were only taken as collateral to the other notes, and denied having agreed to take them in lieu of the other notes; but, since the verdict went for defendants, we must give heed to their testimony, rather than that of plaintiff, in determining the issues presented to this court. At the trial the plaintiff tendered back the notes of Jim and John Sawyer and the chattel mortgage executed by them.

The only question for our determination is...