Frank L. Dittmeier Real Estate Co. v. Knox

• Decision Date: 04 March 1924
• Docket Number: No. 17880.,17880.
• Parties: FRANK L. DITTMEIER REAL ESTATE CO. v. KNOX.
• Court: Missouri Court of Appeals

259 S.W. 835

FRANK L. DITTMEIER REAL ESTATE CO. v. KNOX.

No. 17880.

St. Louis Court of Appeals, Missouri.

March 4, 1924.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by the Frank L. Dittmeier Real Estate Company against Robert M. Knox. Judgment for defendant, and plaintiff appeals. Affirmed.

Benj. J. Klene and Peers & Peers, all of St. Louis, for appellant.

James T. Roberts, of St. Louis, for respondent.

DAUES, J.

This is an action on a promissory note for $1,000 executed by respondent, defendant below, on August 25, 1913, and made payable to the order of one George J. Baker. The cause was tried' before the court sitting as a jury, and resulted in a judgment for defendant, from which plaintiff has appealed.

The petition, after conventional averments, alleges that the note was extended from time to time, and became due under the first extension on August 25, 1919, and thereafter, being extended for six months more, became due under the last extension on February 25, 1920. The petition then alleges that the note before maturity and for value received was duly assigned by George Baker, and that the plaintiff became the legal holder thereof. Credit is given to the plaintiff on said note in the sum of $100, and for the balance, with accrued interest, amounting to $971, the petition prays judgment.

Defendant's answer relies upon two defenses: First, that one Florence Bompart had conveyed certain real property to defendant, and had requested the defendant to execute a promissory note secured by deed of trust on said property in the sum of $1,000. Defendant alleges that then, at her request, he did execute the note for $1,000 and the deed of trust to secure the note on said property to one George Baker, and that immediately thereafter the defendant reconveyed this same property back to Florence Bompart, subject to said deed of trust, and that Baker knew All the circumstances of this transaction, and that defendant was not paid the sum mentioned in said note, to wit $1,000, or any other sum in said deed, and that Baker thereafter indorsed the note without recourse and delivered same, together with the deed of trust, to Florence Bompart, and that the note was executed wholly without consideration. The second defense is that defendant never saw the note after its execution and delivery to Florence Bompart, and that he was not party to any renewals or extensions thereof, and that said note was renewed and extended without his knowledge or consent.

We note from respondent's additional abstract, which brings up the entire record, that the appellant (plaintiff) did not save a single exception to the admission or exclusion of evidence during the progress of the trial, nor were any exceptions saved on any ruling of the court made during the trial. The only exception in the entire record, made or saved by appellant, is to the overruling of the motion for new trial. No declarations of law were asked, given, or refused, and there was no finding of facts made by the court. There was a memorandum filed by the court at the time judgment was rendered, which, however, was not requested by either party, and does not take the place of a statutory finding of facts. Under such circumstances the judgment should not be disturbed, if it can be sustained upon any reasonable theory of law under the facts of the record. Bubach v. Musick (Mo. App.) 250 S. W. 116. For authority that in an action of law tried to the court, a memorandum of the court's findings, which is not made at the request of the parties, does not have the effect of a special verdict, as do findings made pursuant to the statute, but that the finding is to be treated as a general verdict, see Joblin v. Surety Co., 193 Mo. App. 132, 182 S. W. 143.

The evidence is very brief. For plaintiff, Frank L. Dittmeier testified that the plaintiff company obtained the note sued upon from one Dr. Robert I. Rigler in a trade for a certain parcel of real estate, and that plaintiff acquired the note in January, 1920. He testified that at that time the note had not matured under the second extension, which was indorsed on same. The note introduced in evidence is in the usual form, dated August 25, 1913; the amount is for $1,000, and same runs for three years, payable to the order of George Baker, and is signed by Robert M. Knox. The due date is written on the face of the note as August 25, 1916. On the back of the note is the following indorsement:

"Without recourse on me. George Baker."

Following this are these notations:

"This note is renewed for three (3) years from August 25, 1916, becoming due and payable August 25, 1919.

                              "[Signed] R. L. Parker."
                

And again:

"This note is renewed for six (6) months from August 25, 1919, becoming due and payable February 25, 1920, without recourse on me.

                              "[Signed] R. L. Parker."
                

Witness testified that plaintiff demanded payment on the note from Knox, who refused to pay same, and that thereupon plaintiff foreclosed under the deed of trust. The property was sold by the sheriff of St. Louis county, who had been substituted as the successor to the original trustee, and at that sale the property brought $100, which amount was credited on the note, leaving the amount due on the note $971; interest, trustee's commission, advertising, and recording expenses being charged to the note. This was the only witness testifying for the...