Hunterbrinker v. Tappmeyer.

• Decision Date: 08 June 1920
• Docket Number: No. 16158.,16158.
• Citation: 223 S.W. 692
• Parties: HUNTERBRINKER v. TAPPMEYER.
• Court: Missouri Court of Appeals

223 S.W. 692

HUNTERBRINKER v. TAPPMEYER.

No. 16158.

St. Louis Court of Appeals. Missouri.

June 8, 1920.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Herman Hunterbrinker against Joshua Tappmeyer, who pleaded a set-off. From a judgment for defendant, plaintiff appeals. Reversed, and cause remanded.

Bartley & Douglass and W. C. Mayfield, all of St. Louis, for appellant.

Jos. T. Davis, of St. Louis, and Clarence G. Baxter and J. W. Hensley, both of Owensvile, for respondent.

BECKER, J.

Plaintiff appeals from a judgment entered upon a directed verdict for defendant. Plaintiff brought suit against Sam B. Payne, George E. Lance, Ada V. Lance, and Joshua Tappmeyer on an assigned account for rent, alleging in his petition that in the month of September, 1915, defendant Tappmeyer was indebted to defendant Payne in the sum of $960 on account of rent, which said rent account was during said month assigned by the defendant Payne to the defendants George B. and Ada V. Lance and by them later, during the month of October, 1915, assigned to plaintiff.

Defendant Tappmeyer filed a separate answer to plaintiff's petition, pleading as a set off against any sum that might be owing by him to his codefendant Payne that said Payne was on the date of the assignment of said rent account, and still is, indebted to him in a sum over $1,500, evidenced by Payne's promissory note, and, further, in addition thereto, the defendant Payne was indebted to him on account of various sums of money. The answer of the other defendants need not be noted, in that at the close of the case the plaintiff dismissed as to them.

Plaintiff in his reply admitted the execution of the $1,500 note by defendant Payne to the defendant Tappmeyer; that said note was dated the 11th day of October, 1913, and made payable on or before the 1st day of November, 1914, with interest thereon at the rate of 6 per cent. until paid; but "avers the facts to be that plaintiff has no knowledge or information as to whether or not Tappmeyer was after said date the owner of said note."

It appears that the controversy in question arose out of a transaction whereby Tappmeyer and Payne exchanged properties, Payne deeding Tappmeyer a farm in St. Charles county and Tappmeyer in exchange deeding Payne a 20-acre farm, a business building, and a residence in Owensville, Mo., which said residence was at the time being occupied by Tappmeyer. In the transaction Payne gave two notes secured by deeds of trust, one in the, sum of $6,500 payable one year after date with. 6 per cent. interest, which note was made payable to a bank in Owensville, and secured by a first deed of trust upon the residence in question occupied by Tappmeyer; the other note was in the sum of $1,500 made payable to Tappmeyer, which note is adverted to in the pleadings, and was secured by a second deed of trust upon the said residence. According to Payne it was agreed that Tappmeyer was to remain in the residence and pay a rental of $40 per month therefor from the date of the exchange of the properties, while according to Tappmeyer he was to occupy the residence and pay a sum not exceeding $15 per month as rent from January 1, 1914; the moneys derived from the rents, however, to be applied by Tappmeyer toward the payment of the interest on the $1,500 note of Payne held by him, and that any surplus was to be applied to the payment of the principal of said note.

The said exchange of the properties was made on the 11th day of October, 1913, and in September, 1915, Payne sold the residence in question to the defendant George E. Lance, and at that time assigned to him all the rents that were due up to that date from Tappmeyer; the rent in this written assignment being figured on the basis of $40 per month and aggregated the alleged sum of $960. Lance, in turn, shortly thereafter, assigned the said rents to the plaintiff, Hunterbrinker, who filed suit thereon.

It is conceded that Tappmeyer, from the date of the exchange of the properties, occupied the residence, but did not pay over to Payne or any one for him any rent upon the said residence, and that at the time of the said assignment no credits had been indorsed upon the $1,500 note for the rent that had accrued during said period of time.

Defendant Mrs. Lance testified on behalf of plaintiff that at or about the time they received the written assignment from Payne for the rents in question she made a trip to Owensville and called on the defendant Tappmeyer and showed him the assignment, and that Tappmeyer did not at the time "deny he owed the $960 rent being due as mentioned in the assignment," and, according to her testimony, said: "Well, it is like this, I am trying to hold Mr. Payne to pay $500 commission to me for showing Mr. Lance the property."

Defendant Lance testified that defendant Tappmeyer told him that he was paying $40 a month rent for the residence, and that "Mr. Payne and I have matters to adjust and this rent and interest will be taken care of when this, is taken care of together. * * * I will renew those notes and I will execute new deeds of trust for you as soon as that interest is adjusted." On redirect examination this witness testified that Tappmeyer told him, "This $960 claim of mine will be taken care of and new deeds executed, etc., when he and Mr. Payne could get together."

The record discloses that plaintiff introduced in evidence the original written agree meat between Payne and Tappmeyer for the exchange of their properties, which agree meat contained the recital that Tappmeyer was to lend Payne the...