Holcomb v. Summitt

• Decision Date: 30 March 1929
• Docket Number: No. 4465.,4465.
• Parties: HOLCOMB v. SUMMITT et al.
• Court: Missouri Court of Appeals

15 S.W.2d 362

HOLCOMB v. SUMMITT et al.

No. 4465.

Springfield Court of Appeals. Missouri.

March 30, 1929.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Luther Holcomb against C. E. Summitt and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Smith & Zimmerman, of Kennett, for appellants.

L. R. Jones and John M. Dalton, both of Kennett, for respondent.

BAILEY, J.

This is an action by a constable to recover against the sureties or guarantors on an instrument of writing executed and delivered by them in order to prevent the levy of an execution on certain judgments against one H. W. Price, doing business as the Price Drug Company. Plaintiff sues on behalf of and as trustee for the judgment creditors. The instrument upon which the suit is based is in words and figures as follows:

                "$780.63       Cardwell, Mo., Oct. 26, 1926
                

"50 Days after date We promise to pay to the order of Luther Holcomb constable seven hundred eighty dollars & 63-100 dollars.

"This note is given for the security of firms listed on the back of this note and all firms listed on back are to be satisfied by the 15th of December by the Price Drug Company, Security to this note is covered by mortgage on Studebaker car and stock in Drug Store.

                  "No. ___ Due Dec. 15, 1926
                                    "Price Drug Co
                                    "H. W. Price
                                    "C. E. Summitt
                                    "C. A. Summitt,
                                    "J. G. Williamson,
                                    "I. R. Smith."
                

                American Book Company ................. $ 53 23
                Van Vleet Mansfield Drug Co. ..........   41 62
                Memphis Paper Company .................  114 21
                Riechman Crosby .......................  174 00
                Jackson Paint Supply Company ..........   87 18
                E. R. Squibb ..........................   27 32
                Parlette Brothers .....................   52 97
                Chas. C. Cook..........................   55 39
                W. H. Bull.............................   19 36
                E. H. Wright...........................   20 80
                Memphis News Company ..................   37 30
                Woodard Hardware Company...............   91 30
                                                        ________
                                                        $774 68
                Carrying charge ......................     5 95
                                                        ________
                                                        $780 63
                

The evidence shows that prior to October, 1926, one H. W. Price was proprietor of the Price Drug Company, at Cardwell, Mo., and became indebted to the creditors listed on the back of the foregoing instrument, who afterwards obtained respective judgments for the amounts therein set forth. Executions were issued on the judgments and placed in the hands of the constable, plaintiff herein. The debtor asked for an extension of time and offered security. By and with the consent of all the judgment creditors, the instrument sued on was executed in consideration of the granting of an extension of time, and the constable thereupon refrained from making the levy of execution on the various judgments. Afterwards the judgment debtor was adjudged a bankrupt, and no part of these judgments were paid. This cause came on for trial before a jury, resulting in a verdict and judgment for plaintiff in the sum of $822.23, from which judgment defendants have appealed.

Defendants assign as error the failure of the trial court to give their instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case and again at the close of the whole case. It is argued that the taking of the instrument of writing sued on as an inducement or consideration for not making a levy under the executions placed in the constable's hands rendered said...