Koller v. Shannon County Bank, 5373.

• Decision Date: 06 September 1934
• Docket Number: No. 5373.,5373.
• Parties: KOLLER et al. v. SHANNON COUNTY BANK.
• Court: Missouri Court of Appeals

74 S.W.2d 271

KOLLER et al. v. SHANNON COUNTY BANK.

No. 5373.

Springfield Court of Appeals. Missouri.

September 6, 1934.

Appeal from Circuit Court, Shannon County; Will H. D. Green, Judge.

"Not to be published in State Reports."

Action by Mattie Koller and others against the Shannon County Bank. Judgment for plaintiffs, and defendant appeals.

Affirmed.

L. N. Searcy, J. B. Searcy, and W. A. Despain, all of Eminence, and John P. Moberly, W. E. Barton, and W. L. Hiett, all of Houston, for appellant.

Wm. P. Elmer, of Salem, for respondents.

SMITH, Judge.

This is a suit filed by plaintiffs in the circuit court of Shannon county upon the following petition, caption and signatures omitted:

"The plaintiffs state that the Shannon County Bank is a Banking Corporation duly organized and existing under the laws of the State of Missouri, and subject to be sued in the courts of this state, and that the banking institution and its principal offices are located at Eminence, Shannon County, Missouri.

"Plaintiffs for cause of action state that A. F. Koller was indebted to the Shannon County Bank in the sum of $7,030.00, which said indebtedness was evidenced by promissory note, or notes, executed by said A. F. Koller to the Shannon County Bank; that to secure the said note, or notes, the said A. F. Koller had executed and delivered to said bank a deed of trust on Lots 5, 6, 7 and 8 of the Northwest Quarter of Section 5, and Lots 3, 4, 5, 6, 7 and 8 of the Northeast Quarter, and the East part of the East half of Lot 6, lying East of Valley Run, and the East half of Lots 7 and 8 of the Northwest Quarter of Section 6, all in Township 26, North, Range 5, West, containing 1012 acres, more or less, and located in Shannon County, Missouri, all of which said indebtedness and mortgage to said Shannon County Bank was subject to a prior mortgage of $3,200.00 to the Federal Land Bank.

"That on the 14th day of May, 1931, A. F. Koller contracted with Mattie Koller, Lloyd Koller and Ralph Cox, as parties of the second part, to sell the above described lands to them for the sum of $10,230.00 on the following terms: That is to say, the said A. F. Koller agreed to secure a foreclosure of the deed of trust held by the Shannon County Bank, and to allow and permit the said bank to sell the said lands under its deed of trust, and by virtue of the powers therein vested in it or its trustee, and to permit the said Mattie Koller, Lloyd Koller and Ralph Cox to become the purchasers at said foreclosure at the sum of $10,230.00; that the said Shannon County Bank agreed with the said Mattie Koller, Lloyd Koller and Ralph Cox that it would foreclose its said mortgage on the above described lands and allow and permit the said Mattie Koller, Lloyd Koller and Ralph Cox to buy in said lands at said sale, and after purchasing the same at said sale would accept and receive from the said Mattie Koller, Lloyd Koller and Ralph Cox their said notes in the sum of $7,030.00, as a second mortgage on said lands subject to the Federal Land Bank mortgage, as aforesaid; that as a condition of sale by said Shannon County Bank under its deed of trust, and as condition of the purchase of said lands by said Mattie Koller, Lloyd Koller and Ralph Cox, as aforesaid, it was agreed between the parties that the sum of $735.00 should be paid to the said Shannon County Bank by Mattie Koller, Lloyd Koller and Ralph Cox, which said sum was to be used to pay the interest on a said note of $7,030.00 to be executed by the said Mattie Koller, Lloyd Koller and Ralph Cox to the said bank and to discharge the interest due the Federal Land Bank, and if the said Mattie Koller, Lloyd Koller and Ralph Cox should not become the purchasers of said lands at said sale, then the said sum of $735.00 was to be refunded and paid back to them by the said bank; that said plaintiffs duly paid the said defendant the sum of $735.00 under said agreement; that in pursuance of said agreement the said Shannon County Bank duly advertised the said lands for sale under its deed of trust, and on the ____ day of ____, 1931, held a public sale of said lands by its trustee, and offered said lands for sale to the highest bidder, and Mattie Koller, Lloyd Koller and Ralph Cox became the purchasers at said sale for the sum of $7,030.00; that in pursuance of said agreement the said Mattie Koller, Lloyd Koller and Ralph Cox bid in said lands at said sale, and from that time became ready and willing to carry out the terms of said contract and receive a trustee's deed to said lands subject to the Federal Land Bank loan as aforesaid, and to execute their notes and deed of trust to the Shannon County Bank in the sum of $7,030.00, that after the sale of said lands by the said trustee the said Shannon County Bank refused to permit the trustee's deed to be executed by the trustee to said Mattie Koller, Lloyd Koller and Ralph Cox, and refused to carry out the terms of the agreement, and receive and accept from them their notes and deed of trust on said lands, but thereupon demanded cash of said Mattie Koller, Lloyd Koller and Ralph Cox for the amount of their bid, and refused to refund to said Mattie Koller, Lloyd Koller and Ralph Cox the $735.00 which they had previously deposited with the Shannon County Bank under said agreement; that thereafter, the said Shannon County Bank caused to be resold by said trustee the lands under said deed of trust and Charles Seaman became the purchaser of said lands at the second trustee's sale.

"Plaintiffs further state that by reason of the failure of said Shannon County Bank to perform and carry out its contract, as aforesaid, with the plaintiffs, that the plaintiffs have become entitled to have returned to them the amount of money they paid to the said Shannon County Bank under said contract, and that the said Shannon County Bank is indebted to them in the sum of $735.00 with interest thereon from May 14, 1931, at the rate of eight per cent per annum until paid.

"Wherefore, the plaintiffs pray judgment for the sum of $735.00, with interest thereon from May 14, 1931, at the rate of eight per cent per annum until paid together with the costs of this suit, and for other proper relief."

The answer was a general denial. Trial was had on May 11, 1933, a jury having been waived, and the court found the issues for the plaintiffs, and that plaintiffs are entitled to recover of and from the defendant the sum of $735, with interest thereon from May 14, 1931, at the rate of 6 per cent. per annum, aggregating $823, with costs. Judgment was rendered accordingly.

Motion for new trial was filed and overruled by the court, and an appeal granted to this court.

The case is before us on the following assignments of error:

"1. The Court erred in admitting parol evidence as to an agreement to convey land, as such a contract is within the statutes of frauds.

"2. The Court erred in overruling defendant's special demurrer offered at the close of plaintiff's evidence, because the evidence showed that there was a misjoinder of parties plaintiff and causes of action, if any. This was not apparent on the face of the petition and developed only from the evidence.

"3. The Court erred in overruling defendant's demurrer at the close of plaintiff's evidence and at the close of all the evidence. (See Supplemental Abstract.)

"4. There is no substantial evidence to sustain the findings...