Gachioch v. Wittmann, 32153

• Decision Date: 18 October 1966
• Docket Number: No. 32153,32153
• Citation: 408 S.W.2d 175
• Parties: Mary GACHIOCH, Plaintiff-Appellant, v. William G. WITTMANN, Edna Wittmann, and A.A.B. Investment Corporation, a Corp., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 175

408 S.W.2d 175

Mary GACHIOCH, Plaintiff-Appellant, v. William G. WITTMANN, Edna Wittmann, and A.A.B. Investment Corporation, a Corp., Defendants-Respondents.

No. 32153.

St. Louis Court of Appeals, Missouri.

Oct. 18, 1966.

Donald S. Hilleary, Clayton, for plaintiff-appellant.

Charles R. Oldham, St. Louis, for defendants-respondents.

RUDDY, Judge.

This is an action on a promissory note, wherein plaintiff, Mary Gachioch was payee and William G. Wittmann and Edna Wittmann, defendants, were the markers of said note. It was admitted that the corporate defendant, A.A.B. Investment Company assumed the aforesaid note obligation in writing. The verdict was in favor of the plaintiff and against all defendants in the amount of $4939.94. The trial court sustained defendants' motion for new trial because of alleged error in the giving of plaintiff's instruction No. 1. Plaintiff's appeal followed. We shall refer to Mary Gachioch as plaintiff; to William G. and Edna Wittmann as defendants; and to the A.A.B. Investment Company as the corporate defendant.

On May 31, 1962, plaintiff sold a piece of real estate known as and numbered 4101--03 North Twentieth Street, St. Louis, Missouri to the defendants. A part of the consideration for the purchase of the property was a promissory note for $4000 dated May 31, 1962, executed by the defendants and payable to plaintiff. This note on its face indicated that it was secured by a deed of trust on the aforementioned property. The principal and interest of said note was to be paid in monthly instalments of $45.42 beginning the first day of July 1962, and a like amount on the same day of each succeeding month thereafter, until the note was fully paid. The note contained an acceleration clause in the event of failure to pay any of the monthly instalments when due. If the unpaid indebtedness due on the note was accelerated because of default the defendants agreed to pay all costs of collection, including a reasonable attorney's fee.

The issue in the case was whether or not the defendants had made the payment due on December 1, 1962, prior to the time they received notice from the plaintiff of acceleration of the balance due.

It is undisputed that the payment due July 1, 1962, was made by check dated July 13, 1962; the payment due August 1, 1962, was made by check dated August 9, 1962; the payment due September 1, 1962, was made by check dated August 27, 1962; the payment due October 1, 1962, was made by check dated October 19, 1962; and the payment due November 1, 1962, was made by check dated November 21, 1962. It is undisputed that all of these payments were made by check and were sent through the mail and were received by plaintiff and cashed by her. Plaintiff had agreed that the checks could be sent by mail.

Plaintiff testified that she did not receive a check for the payment due December 1, 1962. She consulted Harry Hilleary, an attorney, who was the brother of her trial attorney, about the second or third of January, 1963. Pursuant to the direction of the plaintiff the attorney wrote a letter to William G. Wittmann and mailed a carbon copy of the letter to defendant, Edna Wittmann on January 4, 1963. The letter declared the note in default and made a demand upon the defendants for payment in full of the principal amount of $3900 plus interest from December 1, 1962. Defendants admitted they received the letter on January 6, 1963. Harry Hilleary, attorney for the plaintiff, testified that about the middle of January, 1963, plaintiff came into his office and had in her possession two checks, one of the checks was dated December 11, 1962, and the other was dated January 5, 1963. The maker of these two checks was the corporate defendant. These two checks obviously were in payment of the instalments due December 1, 1962, and January 1, 1963. The two checks were returned to the defendants by the attorney, with a letter dated January 17, 1963. Plaintiff returned all checks received thereafter in payment of the monthly instalments.

Defendant, William G. Wittmann, testified that the checks dated December 11, 1962, and January 5, 1963, were mailed by him to the plaintiff on the day each was issued, which in both instances was prior to receiving, on January 6, 1963, the letter written by plaintiff's attorney accelerating the unpaid indebtedness on the note. This witness further testified that each month from February through September 1963, he mailed a check to plaintiff. He admitted that all of the checks were returned along with a letter from the attorney and that none of these checks had been endorsed by the plaintiff or cashed by her. No more checks were sent by defendants because they had been informed by plaintiff's attorney to stop sending the checks. It was admitted by plaintiff that defendants at the time of the trial in November 1964, tendered the sum of $1090.08 to plaintiff and that said sum represented the instalment payments then due.

As we have pointed out heretofore the trial court sustained the motion for a new trial of the individual defendants and the corporate defendant because of an alleged error in giving instruction No. 1. Said instruction No. 1 is as follows:

'The Court instructs the jury that if you find from the evidence that on or about January 4, 1963 the plaintiff, by and through her attorney, mailed to defendants, William Wittman and Edna Wittman, letters dated January 4, 1963 if you so find, and if you further find that the aforesaid letters were received by defendants, William Wittman and Edna Wittman, if you so find, and if you further find that said letters contained language therein which indicated to the defendants, William Wittman and Edna Wittman, that plaintiff declared her intention to treat the entire unpaid amount of principal due and payable, and if you further find that prior to the time of the receipt of the aforesaid letters by the defendants, William Wittman and Edna Wittman, the defendants had neither paid to the plaintiff the installment due on December 1, 1962, nor had they tendered to the plaintiff payment of the installment due December 1, 1963, if you so find, then your verdict shall be in favor of the plaintiff and against the defendants.' (Emphases ours).

The trial court sustained the motion for new trial of all of the defendants '* * * for error in date of 'December 1, 1963' contained in plaintiff's instruction #1.'

As an aid in discussion of the contention urged by the individual defendants and the corporate defendant that the instruction was misleading and confusing and constituted prejudicial error we set out instruction No. 3, submitted by all of the defendants, which reads as follows:

'The Court instructs the jury that if you find and believe from all the evidence that defendants made tender to plaintiff of the monthly installments of the note mentioned in the evidence for December, 1962 through November, 1964 in the amount of One Thousand Ninety and 08/100 Dollars ($1,090.08), and if you further find from all the evidence, that plaintiff authorized and assented to the defendants paying the monthly installments on said note by mail, and that defendants mailed the monthly payment for December, 1962, on said note to plaintiff before the plaintiff declared the balance of said note due and payable, then your verdict should be for the plaintiff in a sum not to exceed One Thousand Ninety and 08/100 Dollars ($1,090.08). * * *' (Emphases ours.)

As a further aid to our discussion we set out parts of the jury argument of both plaintiff and defendants' counsel. Plaintiff's counsel, inter alia, said:

'* * * Now, that instruction goes on further and says that 'if you further find that prior to the time of the receipt of the aforesaid letters by the defendants, William Wittman and Edna Wittman, the defendants'--had done neither of the two things--if they had done either of the two things, they are entitled to a verdict--the defendants had neither paid to the plaintiff the installment due on December 1, 1962, nor had they tendered to the plaintiff payment of the installment due December 1, 1962--if you find those facts--up to that point, no issue the letter was mailed, they received it on January 6th. The dispute arises whether they made payment or whether they had tendered payment to us prior to the time they received our letter.' (Emphases ours).

'* * * I believe, we are entitled--and we have accelerated; we have not been tendered the payment nor have we been paid prior to the time they received our letter.'

In the closing argument of the defendants' counsel the following was said, inter alia:

'* * * Now, originally, this note was on the second deed of trust; it was for $4000.00; five payments were made on it, and, then, there is a question about the sixth payment. * * *'

Defendants' counsel further said in referring to instruction No. 3:

'* * * Then, the court tells you that if you find from the evidence that the defendant mailed the check, if you find from the evidence that he mailed the check to Mrs. Gachioch, the plaintiff, and that Mrs. Gachioch consented and agreed to him sending, and receiving these payments by mail, and this check was mailed prior to the time they, through their attorney, declared the note in default, then, plaintiff is entitled only to the amount of money we have offered, $1090.08. * * *' (Emphasis ours).

'* * * Now, the crux in this case, the whole issue in this case is whether or not this particular check was mailed prior to January 5th or 6th of 1963. * * *'

'I have tried to limit this case to the issues which are really before you. * * * whether or not a check was mailed in December * * *.'

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