Fullerton v. Schloss
| Decision Date | 07 December 1903 |
| Citation | 77 S.W. 770,104 Mo.App. 195 |
| Parties | JOSEPH A. FULLERTON et al., Respondents, v. MOSES A. SCHLOSS, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. A. M. Woodson, Judge.
AFFIRMED.
Judgment affirmed.
Chas C. Crow for appellant.
(1) The instruction given on behalf and at the request of respondents was erroneous for the reason that said instruction did not advise the jury as alleged in respondents' petition that it was necessary to find that the second alleged agreement was made in consideration of respondents waiving their right if any, under the first alleged agreement. Fegan v. Duval S. & G. Co., 92 Mo.App. 236. (2) Clearly respondents could not recover in this case on account of the breach of the first contract, and, under all the authorities, they can not recover on account of a breach of the second contract for the reason that the money was paid in strict accord with the terms of the written contract and therefore there was no consideration for the making of said alleged contract to refund. (3) And especially is this true where respondent had the right to foreclose and collect five per cent attorney's fees in addition to all expense. Tucker v. Bartle, 85 Mo. 115; Willis v. Gammill, 67 Mo. 730; Brewing Co. v. Schoenlaub, 32 Mo.App. 357; Griffith v. Creighton, 63 Mo.App. 1; Price v. Cannon, 3 Mo. 453; Wetmore v. Crouch, 150 Mo. 671; Winter v. Cable Co., 73 Mo.App. 173; School Board v. Hull, 72 Mo.App. 403; Spratt v. Lawson, 75 S.W. 642.
John George Parkinson for respondents.
(1) If the least benefit or advantage be received by the promisee from the promisor or from a third person, or if the promisee sustained any the least injury or detriment, it will in either case constitute a sufficient consideration. Marks v. Bank, 8 Mo. 316; Lancaster v. Elliott, 55 Mo.App. 249; Columbia Inc. L. Co. v. Mfg. Co., 64 Mo.App. 115.
Since the verdict in this case was for plaintiff we will state the facts as the evidence in his behalf tends to show them: Plaintiff executed two notes to defendant, one for $ 2,500, and one for $ 300, secured by deed of trust on real estate owned by plaintiff. The latter note was due in one year and the former in five years. It was provided in the deed of trust that plaintiff might pay off said notes at any time before due if he would pay defendant a bonus of six months' interest at eight per cent, amounting to $ 112. That several years before the largest note became due defendant desired plaintiff to pay them off and asked him to secure a new loan for that purpose, and that if he would do so he (defendant) would release and forego all claim to the bonus provided for in the deed of trust. Plaintiff in compliance with this request and promise to release and forego all claim to the bonus, did procure another loan; but when he came to pay defendant the latter demanded that he pay the bonus as originally agreed and provided in the deed of trust. This, respondent at first refused to do, but it was finally agreed between them that if plaintiff would pay the bonus thus demanded defendant would make an effort to reloan the principal sums then being paid to him by plaintiff (or a like amount). and if he succeeded in doing so he would then pay back to plaintiff the bonus which plaintiff paid with the principal sum. Defendant did reloan the money but refused to pay back the $ 112 bonus, whereupon plaintiff brought this action and recovered judgment in the trial court.
It is urged by defendant that there was no consideration to support the agreement upon which the suit was brought. We think there was. The largest note was not due. Defendant proposed to plaintiff that if he...
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