Harlan v. Blume

• Decision Date: 05 November 1945
• Docket Number: No. 20627.,20627.
• Parties: HARLAN v. BLUME.
• Court: Missouri Court of Appeals

190 S.W.2d 273

HARLAN v. BLUME.

No. 20627.

Kansas City Court of Appeals. Missouri.

November 5, 1945.

Appeal from Circuit Court, Howard County; Aubrey R. Hammett, Judge.

"Not to be published in State Reports."

Action by William Harlan against Otto A. Blume to recover balance allegedly due on a note secured by a chattel mortgage, together with interest and attorney's fee according to provisions of the note, wherein the defendant filed a counterclaim. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Luman Spry, of Fayette, for appellant.

L. O. Schaumburg, of Boonville, for respondent.

BOYER, Commissioner.

This is an appeal from a judgment on a promissory note. Plaintiff sought recovery of the balance due upon said note executed July 21, 1943, to one H. L. Harlan, which note had been duly assigned to the plaintiff. The original amount of the note was $598. A credit of $65 payment upon the note was acknowledged as of August 9, 1944. Plaintiff sought recovery of the balance due with interest and attorney's fee according to the provisions of the note. The note was secured by a chattel mortgage upon the interest of the defendant in growing corn upon his farm lands.

The answer admits the execution and delivery of the note in suit to H. L. Harlan for the amount named, together with interest and attorney's fee as alleged. For further answer and for affirmative relief defendant sought a counterclaim for $1.03 under the claim that the payment of $65 overpaid the amount of his total debt in that sum. Defendant further alleged payment in full of the note in suit by virtue of an alleged payment of $80 to H. L. Harlan on November 1, 1943, and the payment of $500 to H. L. Harlan on December 20, 1943.

The reply admitted other indebtedness of defendant to H. L. Harlan as alleged in the counterclaim, and denied that any payments were ever made on the note in suit as claimed by defendant other than the sum of $65 that was credited on the note.

The Evidence.

Plaintiff offered the note in evidence. Its execution and ownership were admitted by counsel for defendant. Plaintiff also offered in evidence a letter written by counsel for plaintiff to the defendant on July 8, 1944, in which the defendant was informed that the attorney represented H. L. Harlan's heirs and had for collection his note dated July 21, 1943, for the principal sum of $598, plus interest; also another note of defendant in the sum of $385, secured by deed of trust. In this letter defendant was informed: "These notes must be settled at once, or I will have to file suit on the notes and also begin foreclosure proceedings. I trust you can arrange for immediate settlement and avoid the necessity of suit and foreclosure. The notes provide for payment of attorney's fee in addition to principal and interest. That provision will be waived on the condition that you settle now and before further action is taken to enforce payment of the same."

Plaintiff offered in evidence a letter from defendant to counsel for plaintiff dated August 8, 1944. This letter makes reference to the letter of the attorney dated July 8, 1944, acknowledges receipt of same, and mentions the fact that the defendant called at the attorney's office immediately in regard to the matters mentioned in his letter. The letter then continues: "After getting all the figures to date which included the interest figured on both notes which covers the notes which I owe the H. L. Harlan heirs and of course which you have for collection. Mr. Schaumburg, you were so kind to inform me that you could wait until August 20th before taking any action that I would have time until then to take care of this matter. I have decided that I can get way from my government position and be up on the 15th or the 16th of this month. Therefore, you can expect to see me one of those two days as I will be up there to take care of matters. You can have the necessary papers so we can clear up matters." A postscript to this letter stated: "Attached please find check for $65.00 which you may apply on the $598.00 note. This $65.00 is the sum received for the corn in my crib on my farm at New Franklin, Missouri."

Plaintiff further offered in evidence the summons issued in the case together with the return of the sheriff to the effect that the defendant refused to hear the writ read, and refused to receive a copy of the writ and a copy of the petition. Plaintiff also offered in evidence the answer of defendant. Plaintiff then rested his case.

Defendant then testified that he was at that time living in St. Louis, but his residence was at New Franklin, and that he owned a farm there; that he knew Dr. H. L. Harlan in his lifetime and transacted business with him for a long period; that he frequently borrowed money from him and whenever he needed help he would go to Dr. Harlan; that he had borrowed money from him over a period of three or four years; that he was working for the government as a railway mail clerk. Defendant then offered in evidence three letters which he said he had received from Dr. H. L. Harlan and bearing his signature. These letters were identified as defendant's Exhibits A, B, and C. Exhibit A is dated November 23, 1943. This letter was in reference to the condition of corn in the field which had not yet been gathered. Dr. Harlan was urging the defendant to have it taken care of and stated: "I am very much interested in salvaging all I can on a bad chattel note." Exhibit B is a letter from Dr. Harlan to the defendant. This letter was in the main in reference to the condition of the corn, and reminded defendant that it was his duty to take care of the corn and to deliver it over the scales. The letter further stated that the yield of corn was going to be low and disappointing. "I can give you credit on your note and next season when Humpfeldt puts it in you can give me mortgage for any balance; that is unless you care to pay the difference out of your present wages. I gave you credit for $80.00 cash paymt on your note. I really think it's best for you to run up and see the corn yield for yourself." Exhibit C was a letter dated January 4, 1944, and renews the discussion about the condition of the corn. The writer expressed the hope that defendant would soon come and look after it, and stated: "If you delay much longer you may not have any to gather." Reference is also made in this letter to the interest due on the deed of trust note and to a certain note for $116, called a cow note, and to the amount of the balance due on it, and requested defendant to send him a check for $53.27 to cover these balances. "I don't see why you don't cultivate your farm next season and raise enough corn to cut your mtg down 2 or 3 thousand so you can easily carry it and not be at the mercy of the `Lord Wellingtons' or maybe I could then take it." Then follow these words: "Thenks for $500.00 cash paymt"

Defendant offered in evidence an unsigned note and chattel mortgage securing the same which plaintiff's counsel had prepared for execution by defendant. It was to cover the estimated balance due on the note in question. Defendant also offered in evidence the note for $385 and the deed of trust securing same, and a cancelled check under date of August 16, 1944, for the sum of $415.73, payable to plaintiff's counsel in settlement of said note. The check was drawn on the Manchester Bank of St. Louis. Defendant testified that he made the $80 payment referred to and that he expected it to be a payment on the note in question; that he made the $500 payment around December 20, 1943, and that when he made the $65 payment to plaintiff's counsel it was his opinion that the amount covered the sum due on the cattle note and the note in suit, and that this was after he and his counsel figured it up; that by such payment he had overpaid the amount of his debt $1.03, and that in his opinion plaintiff owed him that sum.

On cross examination defendant stated that he had been dealing with Dr. Harlan for a number of years and that the doctor had loaned him considerable money; that he could borrow money from him most any time and that their relationship was always very pleasant; that he would buy livestock and depend on Dr. Harlan to cover the check. Defendant admitted that he received the letter from plaintiff's counsel demanding payment of the $598 note and that he called to see the attorney after the letter was received, and also admitted writing the letter to plaintiff's counsel heretofore referred to; that he called at the office of plaintiff's counsel who then had the deed of trust note and the $598 note, and that counsel then calculated the interest on both notes and defendant made no objection at the time. These questions and answers follow:

"Q. You never raised any objection then, did you? A. I didn't at that time because I wasn't sure.

"Q. And on that occasion you said you were not prepared to settle the indebtedness and that you could get the money from some other source to pay both the notes if I would give you additional time, and you wanted to know how must time I would give you? A. That's right.

"Q. And I told you we had to get the suit filed at the September term and I would wait until possibly August 20th before taking any action? A. That's right.

"Q. And you made no claims at that time that you paid any amounts you had not gotten credit for? A. Not at that time. * * *

"Q. Well, anyhow, you then stated at that first conference with me that you would arrange for the money to pay the mortgage on that corn? A. I told you I had a salary check coming in very shortly and would have the money.

"Q. Do you mean to tell the court now that you questioned the figures presented at that time? A. I didn't question the figures at that time, but you approached me in such a way that I didn't call your hand.

"Q. You didn't claim at any time that you had not received credits for any payments made? A. I didn't deny anything...