Hume v. Hale
| Decision Date | 01 February 1910 |
| Parties | JAMES R. HUME, Appellant, v. GEORGE W. HALE et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Scotland Circuit Court.--Hon. Chas. D. Stewart, Judge.
AFFIRMED.
This action was instituted on two promissory notes, each dated January 1, 1902, due one year after date, promising to pay $ 332.50 for value received with interest at the rate of eight per cent per annum from maturity, compounded if not paid annually, and containing a recital that the makers should pay an attorney's fee if the note was collected by law. The two notes were signed by defendants George W. and Charles L Hale, had been indorsed in blank by James R. Hume and transferred to the Kahoka Savings Bank shortly after their execution, had remained the property of that bank for more than a year and then had been reassigned to James R. Hume the original payee. The petition is in two counts, one on each note, and each count alleges, among other matters, the execution of the note declared on and its contents; that it was given for the rent for the year commencing March 1, 1902 and terminating February 28, 1903, of a certain described farm containing 332 1/2 acres in Clark county, which plaintiff had leased to the defendants, and that $ 50 would be a reasonable attorney's fee to collect it. The answer was drawn in the form of four counts, of which the first admitted the execution of the notes in suit and that plaintiff was and is the owner of the same, but denied every other allegation of the petition. The second count merely averred defendants had fully paid and discharged one of the notes. The third count said plaintiff and defendants on December 3, 1899, entered into a written contract whereby plaintiff leased to defendants the farm described in the petition for a term to begin January 1, 1900, continue for five years and end December 31, 1904; that in said contract defendants agreed they would execute and deliver to plaintiff two notes each year for the sum of $ 332.50 respectively payable in one year from their date; that by the terms of the lease one of said notes should be paid in cash and the other in labor done on the premises by defendants, or in cash, at the election of defendants; said labor to be designated by plaintiff; that the written lease further provided plaintiff might sell the farm during the term of the tenancy, and if he should sell during said term at a date between December first and March first of any year, plaintiff agreed to pay defendants the sum of two hundred dollars and on payment thereof defendants agreed to deliver possession of the premises to plaintiff and remove from them; that the lease further said if plaintiff sold the premises at any other time than between the two dates mentioned, defendants agreed to deliver possession to him; that on November --, 1902 plaintiff notified defendants he had sold the premises and asked them to give possession as per their contract; that defendants, on receiving the said notice and demand, relying on the statements contained in it and believing they were true, and to comply with their contract in that regard removed from the farm and delivered possession to plaintiff in March, 1903; that at the time plaintiff so notified defendants he had sold the farm and demanded possession, he had not sold it and at the commencement of this action was still the owner; that plaintiff notified defendants he had sold and demanded possession for the fraudulent purpose of deceiving defendants and obtaining possession of the farm, and for the purpose of cheating defendants out of the value of the rent of the farm, to-wit, for the years 1903 and 1904; that when said notice was given defendants' term did not expire until January, 1905, and by reason of the fraudulent conduct of plaintiff, they were deprived of the unexpired portion of the term, or two years; that the reasonable yearly rental of said farm was $ 1000, and under their agreement to pay $ 650 for it to plaintiff, and by reason of plaintiff's fraudulent conduct aforesaid, defendants were defrauded out of $ 350 each year, or the difference between the rent they were to pay and the value of two years of the term, the sum of $ 700; that they were also put to the expense of $ 100 in removing their stock, machinery, goods and household effects from the farm, and the further expense of $ 50 in procuring another place to which they might move; wherefore the defendants prayed judgment against plaintiff for $ 850 as a counterclaim. The fourth count of the answer set up the contents of the written lease substantially as set up in the third count, alleged defendants had agreed to execute two notes of $ 332.50 each at the beginning of each year for the rent of said year, and by the terms of said lease the notes were to be paid in cash or in labor and improvements on the farm, and if defendants elected to do work in payment of a note, they were to do it at the direction of plaintiff. The further averment was that the notes declared on in this action, were given under the lease contract for the rent of the premises for the year ending March 1, 1903, and were due and payable on the first day of January, 1903; that during the year defendants elected to pay one of the notes in work on the premises and requested the plaintiff to designate the work desired, notifying him they were willing and ready to do it; but plaintiff, in disregard of his duty under the contract and in violation of the terms thereof, refused to designate what work should be done on the farm, and refused to point out to defendants any work for them to do in payment of said note so they might discharge themselves from liability, wherefore defendants averred they were damaged by this violation of the contract by the plaintiff in the sum of $ 350, for which sum they asked judgment. In reply plaintiff denied defendants had paid or discharged either of the notes as alleged in the second count of the answer. In reply to the third count of the answer plaintiff admitted he had represented to defendants the farm had been sold, but denied he did so for the purpose of cheating them out of the value of the rent of the farm for the years 1903 and 1904; alleged further the rent received for the farm was its full value; alleged defendants' term of lease would have expired March 1, 1904, according to the true understanding of the parties, but by mistake in writing the lease, it was so written as to fix March 1, 1905, as the date of expiration. Plaintiff denied defendants were defrauded of two years of their term by representations of plaintiff, denied the reasonable value of the yearly rental of the farm was $ 1000, denied the difference in said value and what defendants would pay was $ 350 a year, denied defendants were put to $ 100 expense in removing from the premises, or $ 50 in procuring another place, and, in conclusion, denied defendants had any right to the allowance of a counterclaim for the causes aforesaid in the sum of $ 850, or any other sum. In reply to the fourth count of the answer, plaintiff denied that during the year 1903 defendants elected to pay one of the notes by work on the farm and alleged both notes were payable in money; denied defendants requested plaintiff to designate work to be done in discharge of the note; denied defendants paid any part of the note in work and averred he tried to induce defendants to do work but failed; denied defendants were damaged in the sum of $ 350 by any act of plaintiff in refusing to furnish them work to pay one of the notes and contended defendants should not be allowed a counterclaim in the sum of $ 350 or any other sum by reason of the matter stated in the fourth count of the answer. Further replying to the fourth count, plaintiff averred that in the year 1898, he contracted with defendants to rent them a farm in Clark county for five years, the term to commence March 1, 1899, and end March 1, 1907; that pursuant to said contract defendants went into possession of the premises March 1, 1899, as tenants, and afterwards the contract was attempted to be reduced to writing but by mistake of the scrivener, the year 1904 was included in the term, which mistake neither defendants nor plaintiff observed when the contract was signed and executed. The written contract was then set up in reply and is as follows:
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