Jackson v. Renken

• Decision Date: 24 May 1926
• Docket Number: No. 15679.,15679.
• Citation: 283 S.W. 729
• Parties: JACKSON v. RENKEN.
• Court: Missouri Court of Appeals

283 S.W. 729

JACKSON v. RENKEN.

No. 15679.

Kansas City Court of Appeals. Missouri.

May 24, 1926.

Appeal from Circuit Court, Benton County; C. A. Calvird, Judge.

"Not to be officially reported."

Action by S. Palmer Jackson against Herman Renken. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Lamm & Lamm and A. L. Shortridge, all of Sedalia, for appellant.

T. C. Owen, of Warsaw, and Fred A. Benz, of Sedalia, for respondent.

BLAND, J.

The facts giving rise to this cause of action are as follows: On June 20, 1922, and prior thereto, plaintiff was the owner of a certain farm located in Pettis county, which he had purchased of the defendant. Defendant held a second deed of trust upon this farm, securing a note in the sum of $23,800. Prior to June 20, 1922, plaintiff became further indebted to the defendant, a part of which indebtedness was secured by chattel mortgages on personal property owned by plaintiff. On or about June 20, 1922, one McCoy offered to trade the equity in his farm in Benton county for plaintiff's equity in said Pettis county farm. Defendant thought that his position would be bettered if McCoy would take the place of plaintiff as debtor in said deed of trust for $23,800, so he entered into a verbal agreement with plaintiff and McCoy to the effect that plaintiff and McCoy should exchange farms, the latter to assume and pay all indebtedness on the Pettis county farm, and give defendant a note for $3,455; that defendant should cancel and release all debts then owing by plaintiff to defendant, including the chattel mortgages, and pay plaintiff $1,000 when the deeds of conveyance were made. Pursuant to this agreement plaintiff and McCoy exchanged their farms and delivered their respective deeds, and McCoy then delivered his promissory note for $3,455 to defendant, but defendant did not pay plaintiff the $1,000 as agreed.

The answer of defendant consisted of a general denial and counterclaims, totaling the sum of $1,288.32. Defendant admitted that he agreed to pay plaintiff $1,000, but claimed that this was not to be done until McCoy had paid defendant the $3,455 note. Defendant denied that he agreed to release any indebtedness of plaintiff to him, represented by the items pleaded in the counterclaim. Plaintiff admitted that he owed defendant the items covered by the counterclaims, but contended that they were released as a part of the consideration of the conveyance of his farm to McCoy.

The issues at the trial were: First, Did defendant agree to pay plaintiff the sum of one thousand dollars when the latter's deed was delivered to McCoy? and, second, Did defendant, as a part of the consideration for the contract, agree to cancel all debts and chattel mortgages then owed by plaintiff to defendant amounting to $1,207.57 and covered in the counterclaim?

Plaintiff and defendant offered instructions covering their respective theories, all of which the court refused, and gave an instruction of his own covering what the court conceived to " be the issues. The material part of this instruction reads as follows:

"In this case the jury will determine whether the $1,000 was to be due and payable when the deeds for the exchange of land between McCoy and defendant were executed, or whether the $1,000 was to be due and payable when McCoy paid to the defendant the note of $3,455, given for interest and taxes.

"If you find the $1,000 was to be due and payable when the deeds for the exchange of lands were executed, then you will find for plaintiff the amount due him, less whatever sum, if any, may be due defendant on his counterclaim.

"If you find that the $1,000 was not to be due and payable until McCoy paid the note to defendant, then you will find for the defendant.

"If you find that the $1,000 was to be due and payable when the deeds for the exchange of land were executed, then you will determine what amount, if any, is due the defendant on his counterclaim, and deduct the same from the amount of the $1,000 and interest on the same at 6 per cent. from June 20, 1922.

"If you find that all of the indebtedness due from plaintiff to defendant was included in the contract made between plaintiff and defendant, then you will find for the plaintiff the full amount of the $1,000 and interest thereon at 6 per cent. from June 20, 1922."

The jury returned a verdict in favor of plaintiff in the sum of $1,000, and defendant has appealed.

Defendant insists that the court erred in giving the court's instruction. No complaint is made of the first four paragraphs of the instruction, but it is insisted that paragraph 5 thereof was misleading, because it ignores the question as to when the $1,000 was to be paid; that is, it allowed the jury to find for plaintiff in the sum of $1,000, regardless of whether that sum was due when the deeds in question were executed and delivered, and ignores defendant's evidence that it should not be payable until the $3,455 note was paid.

We think that this contention is well taken. The first four paragraphs deal with the question as to when the $1,000 was to be paid, and did not cover the question of the entire indebtedness to defendant by plaintiff. We think the instruction is misleading in that the fifth paragraph leaves the impression that, if both the $1,000 and the other indebtedness were included in the contract it made no difference as to when the $1,000 was to be paid, and plaintiff was entitled to a verdict.

The court should have given the following instruction offered by defendant:

"The court instructs the jury that the plaintiff admits owing all sums claimed by defendant in his counterclaim, accruing prior to June 20, 1922, which sums total $1,207.57. If you find and believe from the evidence that Herman Renken never agreed to release S. P. Jackson from paying Herman Renken the sum of $1,207.57, then you may find for defendant for $1,207.57 on his counterclaim." Cahn v. Reid, 18 Mo. App. 115; Warehouse & Storage Co. v. Toomey, 181 Mo. App. 64, 163 S. W. 558; ...