Hunleth v. Leahy

• Decision Date: 06 December 1898
• Citation: 146 Mo. 408,48 S.W. 459
• Parties: HUNLETH v. LEAHY et al.
• Court: Missouri Supreme Court

48 S.W. 459

146 Mo. 408

HUNLETH v. LEAHY et al.

Supreme Court of Missouri, Division No. 2.

December 6, 1898.

ABATEMENT AND REVIVAL — DEATH OF APPELLANT — PLEADING WRITTEN CONTRACTS — FAILURE OF PROOF — PAROL EVIDENCE — NOTES — ASSIGNMENT — DEFENSES AGAINST ASSIGNEE — APPEAL — OBJECTIONS AND RULING THEREON.

1. Under Rev. St. 1889, § 2295, providing that, on the suggestion of the death of one of several appellants, the cause shall proceed at the suit of the survivors, an administrator of a deceased appellant need not be substituted in his stead, where other appellants survive.

2. A defendant pleading a written contract which he produces and identifies, but fails to put in evidence, cannot prove the terms by parol.

3. A defendant tendering an issue by pleading a certain written contract abandons such issue by failing to offer the writing in evidence.

4. A maker of a note cannot set off against it, in the hands of an assignee after maturity, a balance due from the assignor on a mutual account when the assignment was made.

5. Defendant in his answer relied on an alleged written contract, but he did not offer the writing in evidence, and parol evidence of the contract was rejected on the ground that the writing was the best evidence. Held, that an objection by defendant that the writing was inadmissible, because it was not delivered and its execution was unauthorized, could not be considered on appeal.

6. A defendant in his answer predicating a plea of payment on a certain person's written agreement to assume the indebtedness sued for is not entitled to prove the agreement by parol, on the ground that the writing is inadmissible in evidence because of a failure of delivery and an unauthorized execution.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by Frank Hunleth against David P. Leahy and another. Judgment for plaintiff, and defendants appeal. Affirmed.

L. Frank Ottofy and John P. Leahy, for appellants. John A. Gilliam and John W. Drabelle, for respondent.

GANTT, P. J.

This is an action on a negotiable promissory note executed and delivered by the defendants, David P. Leahy and Charles Padersky, to Mrs. Anna Davis, and secured by a deed of trust on certain real estate known as the "Ramona Park Place Tract," duly recorded. It was indorsed by Mrs. Davis, and became the property of Alonzo F. Davis, and was by him indorsed to George E. Henner, and by George E. Henner it was hypothecated with the Union Trust Company, before its maturity, for $4,200. Not having been paid at maturity, the Union Trust Company caused it to be protested for nonpayment. Subsequent to the protest, the plaintiff, Hunleth, paid the trust company $4,200 for its interest, and traded George E. Henner plaintiff's equity in some real estate in the city of St. Louis for his equity in the note. In this action the makers of the note make no claim that they had any defense to the note in the hands of Mrs. Anna Davis, Alonzo Davis, or the trust company. It is also admitted that the Union Trust Company caused the real estate, covered by the deed of trust given by defendants to secure this note, to be sold, and realized $4,504, which sum was credited on the note, and this suit is for the balance. Defendants filed separate answers. Padersky denied the note was indorsed to plaintiff for value, and then pleaded this special defense: "Defendant admits the execution of said note, as alleged in said petition; admits that there is a credit of $4,504 on said note, the result of a sale of real estate by which said note was secured. Defendant states that, on or about October 8, 1892, for a valuable consideration received from defendants, David P. Leahy and Charles Padersky, Jacob F. Storm, and Emile Henner, his agent, contracted and agreed with defendants to pay up and cancel said note at its maturity; that in pursuance of said agreement, and after the maturity of said note, said Emile Henner fully paid and took up said note; that said Emile Henner, after he had fully paid and taken up said note, and after its maturity, indorsed and delivered said note to plaintiff; and that plaintiff took said note, after its maturity, from said Emile Henner, with full knowledge that the same had been fully paid by said Henner, in pursuance of his agreement made with defendants, and plaintiff paid no value for said note. Wherefore defendant says plaintiff is entitled to no recovery against him, and he asks to be hence discharged, with his costs." Defendant Leahy first denied every allegation in the petition, and then, for further defense, pleaded "that the note herein sued upon by plaintiff has been fully paid and satisfied when it came into the possession of plaintiff; that on or about the 9th day of August, 1892, the defendants acquired of one Anna S. Davis, by warranty deed in due form, a tract or parcel of ground situated in the county of St. Louis and state of Missouri, and known as `Ramona Park Place,' which said deed is of record in the recorder's office of said county, in Book 59, at page 621; that, as a part consideration of said tract or parcel of ground, these defendants executed to said Anna S. Davis the note herein sued upon, secured by a deed of trust of even date upon said property, which was duly recorded in the office of the recorder of deeds of said county, in Book 59, at page 621; that thereafter, on or about the 8th day of October, 1892, the defendants bargained and sold said property to Emile E. Henner, George E. Henner, * * * and Charles Sutter, composing the firm of Henner Bros. & Co., the same being conveyed to them by defendants by warranty deed, dated October 15, 1892, in the name of said Charles Sutter, one of said firm, said deed being of record in the office of the recorder of deeds of St. Louis county, Mo., in Book 63, page 314; that it was the custom of said firm, owing to its impending financial straits, to purchase real property in the individual names of its partners, and in that of strangers, or `straw men'; that, at the time said firm so purchased said property, one of its members, to wit, Emile E. Henner, acting for said firm, and in the name of one Jacob F. Storm, a nominal party, having no interest in the transaction, agreed, by a written obligation dated the 8th day of October, 1892, to assume the payment of the note herein sued upon as a part consideration for the purchase of said property, which was conveyed to said Sutter as aforesaid, subject to said deed of trust and note; that thereafter, to wit, on the ___ day of October, 1892, the said firm of Henner Bros. & Co. was dissolved, and the said George E. Henner and Emile E. Henner succeeded thereto, under the firm name and style of Henner Bros., and assumed all the obligations of said firm of Henner Bros. & Co.; that thereafter, to wit, on the 19th day of February, 1894, the said firm of Henner Bros., by one of its members, viz. George E. Henner, purchased from Alonzo F. Davis the note herein sued upon, and thereby acquired and became the owner of the equity of redemption therein, and thereby satisfied and paid the same, pursuant to its obligation to do so as aforesaid; that thereafter, to wit, on or about the 23d day of February, 1894, the said firm of Henner Bros.,...