George v. Richardson Machinery Co. v. Dix

• Citation: 245 S.W. 215
• Decision Date: 04 December 1922
• Docket Number: No. 14478.,14478.
• Parties: GEORGE O. RICHARDSON MACHINERY CO. v. DIX.
• Court: Missouri Court of Appeals

245 S.W. 215

GEORGE O. RICHARDSON MACHINERY CO. v. DIX.

No. 14478.

Kansas City Court of Appeals. Missouri.

December 4, 1922.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by the George O. Richardson Machinery Company against William Dix. Judgment for defendant, and plaintiff appeals. Affirmed.

Horace Merritt and Ryan. & Zwick, all of St. Joseph, for appellant.

Mytton & Parkinson, of St. Joseph, for respondent.

ARNOLD, J.

This is an action to recover the balance alleged to be due upon five promissory notes executed by defendant in the months of May and November, 1914, for the total sum of $2,500, and due on or before September 1915 and 1913, after date, bearing interest from date at the rate of 7 per cent. per annum and attorney's fee of 10 per cent in the event said notes were collected by suit. There was a credit of $1,345, leaving a balance due on the principal, exclusive of interest and attorney's fees, of $955.

The facts disclosed by the record are as follows: Plaintiff is a corporation duly organized and existing under the law and doing business at St. Joseph, Mo. Defendant resides at, or near, the town of .De Kalb in Buchanan county, Mo. During the year 1914, defendant purchased of plaintiff two threshing machine outfits, each consisting of an engine and separator, trading in an engine at the agreed value of $500, the balance of the purchase price being $2,500 for one set and $1,100 for the other; said balance being evidenced by defendant's promissory notes, on which he afterwards paid $1,300 cash. The notes were secured by a chattel mortgage on the two threshing outfits. The payments on the notes were not met by defendant, and the authorized agent and representative of plaintiff agreed with defendant to take back the two threshing outfits, in lieu of the foreclosure of the mortgage. The testimony shows that besides the two threshing outfits plaintiff also took a pump and some extras belonging to defendant of the value of $40.

Defendant executed a bill of sale to plaintiff, at the time the agreement was entered into relative to the surrender of the threshing machines; said bill of sale was executed on a printed blank form furnished by plaintiff, and the consideration for the execution of the same, as therein expressed, was $1,600. This item was written in, and plaintiff claims was the full consideration agreed upon between plaintiff's agent and defendant. However, it is urged by defendant that the amount stated in the bill of sale was not the real consideration, and that the real consideration was that "plaintiff would cancel my notes and all there was against me." In other words, that the cancellation of the notes was the real consideration for the execution of the bill of sale.

The evidence shows that one of the machines taken back was worth $2,000, and in fact was sold for that amount before its delivery by defendant to plaintiff, and that a reasonable value for the remaining outfit was $1,500. The testimony further shows that plaintiff collected $32.50 for threshing done by defendant, thus making a total of $3,572.50, received by plaintiff, including the valuation of $1,500 for the second outfit. Further it is in evidence that defendant owed plaintiff only $2,300, and some accrued interest. The prayer is for recovery of $1,193.37, together with interest and attorney's fees. The petition is formal and is in five counts, each of which describes one of the notes in issue and asks recovery thereon. The amended answer of defendant admits the execution of the notes described in the petition, and, further answering, defendant pleads the payment of said notes, and that the same should have been canceled by plaintiff and returned to defendant, and that the payment of said notes was made under the following circumstances:

"That the notes in question were in payment of balance of purchase price on two threshing outfits purchased by defendant of plaintiff, as of dates of the two sets of notes, to wit, May 7, 1914, and September 24, 1914; that at the time of the execution of said notes certain chattel mortgages securing the same were given by defendant upon said machines; that thereafter and during, to wit, the month of October, 1915, the defendant being unable to meet payments then due upon said notes, and plaintiff desiring to obviate the expense of foreclosure and sale of the machines involved under the terms of the chattel mortgages, it was agreed between the parties that defendant should reconvey the machines to the plaintiff, and that the plaintiff would thereupon cancel defendant's notes.

"Defendant states that in pursuance of said agreement he redelivered said machinery to the plaintiff, reconveying and transferring all his title therein to the plaintiff, and in all things fully performed said agreement; that by said performance said notes were, under the terms of said agreement, satisfied and paid and are not available to plaintiff as a cause of action herein."

The reply was a general denial. The cause was tried to a jury on November 7, 1921, resulting in a verdict and judgment for defendant on all the five counts. Motion for a new trial was overruled, and plaintiff appeals.

As ground for reversal plaintiff urges that the court erred in permitting oral testimony to go to the jury as...