Kraemer v. Leber
| Decision Date | 20 April 1954 |
| Docket Number | Nos. 28760 and 28761,s. 28760 and 28761 |
| Citation | 267 S.W.2d 333 |
| Parties | KRAEMER et al. v. LEBER et al. |
| Court | Missouri Court of Appeals |
Raleigh McCormick, Clayton, H. L. C. Weier, Hillsboro, for plaintiffs-appellants.
Dearing & Matthes, M. C. Matthes, Hillsboro, for respondent and defendants.
HOUSER, Commissioner.
This is a suit to enjoin the foreclosure of a deed of trust and to compel the crediting of certain payments on the principal note thereby secured.
Geneva Kraemer and William Kraemer, her husband, filed a petition as makers of a principal note in the amount of $5,000 and ten semi-annual interest notes to stop the foreclosure of the deed of trust securing them and to compel the crediting of the principal note with the payment of $1,200 which plaintiff claimed they paid to a collecting agent of the owner of the note, and to effect a pro rata deduction in the principal amount of the interest notes remaining unpaid. They joined as defendants Mr and Mrs. J. C. Leber the latter of whom was the owner of the note. Other defendants were the Sheriff of Jefferson County, acting trustee under the deed of trust, and Grace A. Wheeler, the original payee. The latter filed a disclaimer. Defendants Leber filed an answer denying that any payments had been made on the principal note to them or to any person authorized by them to collect payments thereon, alleging that the principal sum of $4,500 remained due on the note, and asserting the right to foreclose the deed of trust for default in the payment of an installment note due in the sum of $112.50. The chancellor enjoined the foreclosure and awarded defendant Mrs. J. C. Leber the sum of $597.21. From this decree both the plaintiffs and defendant Mrs. J. C. Leber have appealed to this court.
The cause was submitted on an agreed statement of facts. Plaintiff Geneva Kraemer owned certain real estate located in Jefferson County. Desirous of negotiating a loan she and her husband went to the office of George Pickles, a real estate dealer doing business in Sappington, where, on September 22, 1947, plaintiffs William and Geneva Kraemer executed their negotiable promissory note in the principal sum of $5,000, payable five years after date, bearing interest from maturity at the rate of 8% per annum, together with ten negotiable interest notes in the sum of $125 each, the first of which was payable six months after date and the remaining nine of which became due, in order, at six-month intervals thereafter. Plaintiff executed a first deed of trust upon their real estate as security for the notes. The principal note, each of the ten interest notes and the deed of trust all recited that payments thereon were to be made at the office of George Pickles. All of the notes were made payable to Grace A. Wheeler, daughter of George Pickles, who was acting merely as a straw party for her father. She claimed no interest in the notes or deed of trust and upon execution and delivery thereon endorsed them without recourse to George Pickles. The deed of trust provided that the makers of the notes reserved the right to pay the sum of $100 or any multiple thereof on account of the principal note at any interest maturity date and that a pro rata deduction should be made in all interest notes thereafter maturing.
When the first six interest notes fell due on their respective due dates 6, 12, 18, 24, 30 and 36 months after September 22, 1947, plaintiff paid them at the office of George Pickles. During that 3-year period plaintiffs also paid the total sum of $1,200 upon the principal note, likewise at the office of George Pickles. When plaintiffs paid the interest notes Pickles would deliver to them the interest note then being paid. When payments were made upon the principal note Pickles would hand to plaintiffs a printed form of receipt showing the date of payment, the amount paid upon the principal and the principal then remaining due. No endorsement of payment on the principal note was made on the note itself at such times. The following is a schedule of the payments of principal and interest, showing the pro rata amount paid on interest, the amount paid on principal and the principal balance remaining due:
Date of Interest On On Principal
Payment Note No. Interest Principal Balance
-------------- -------- -------- --------- ---------
April 12, 1948 1 $125.00 ------ $5000.00
April 13, 1948 - ------ $336.26 4663.74
Sept. 11, 1948 2 116.60 ------ 4663.74
Sept. 11, 1948 - ------ 300.00 4363.74
Mar. 23, 1949 3 109.10 ------ 4363.74
Sept. 17, 1949 4 109.10 ------ 4363.74
Sept. 17, 1949 - ------ 363.74 4000.00
Mar. 23, 1950 5 100.00 ------ 4000.00
Sept. 25, 1950 6 100.00 ------ 4000.00
Sept. 25, 1950 - ------ 200.00 3800.00
On February 9, 1949 defendant Mrs. J. C. Leber purchased the principal note and interest notes Nos. 4 to 10, inclusive, from George Pickles for the sum of $4,500. At that time George Pickles delivered to her the principal note, the interest notes then remaining unpaid and the deed of trust. The unpaid interest notes fell due 24, 30, 36, 42, 48 54 and 60 months, respectively, after September 22, 1947. She also received the certificate of title and an insurance policy for $5,000 expiring October 7, 1950. On February 9, 1949 each of the interest notes had been reduced pro rata from $125 to $112.50. Between September 22, 1947 and February 9, 1949 plaintiffs had paid George Pickles $636.26 on the principal note, leaving an unpaid balance of $4,363.74. Pickles did not disclose to Mrs. J. C. Leber these payments on account of principal at the time he sold her the note on February 9, 1949, and thereafter Pickles did not remit to Mr. and Mrs. J. C. Leber the two subsequent payments on the principal note made to him by plaintiffs, which as of September 25, 1950, should have reduced the amount due on the principal note to $3,800 and the amounts due on the interest notes to $95. At the time Mrs. J. C. Leber purchased the note and deed of trust on February 9, 1949 George Pickles paid her $18.50 in cash, being the amount of unearned interest due on interest note No. 3 from the date of purchase to March 22, 1949, the due date of interest note No. 3. Thereafter and on September 19, 1949, three days before the next interest note was due, she took interest note No. 4 to the office of George Pickles and received $112.50 from him in the form of a check. On or about March 22, 1950 and again on or about September 22, 1950 Mrs. J. C. Leber took interest notes Nos. 5 and 6 to the office of George Pickles, and on each of these occasions received the sum of $112.50 in cash from George Pickles. Plaintiffs would come to the office of George Pickles to pay the interest notes and he would adjust them by making a pro rata reduction in ink thereupon according to the balance then due by reason of the payments made by plaintiffs on the principal note. At all times subsequent to February 9, 1949 Mrs. J. C. Leber had possession of the principal note and of the unpaid interest as well as the deed of trust. The documents were not in the possession of George Pickles after Mrs. J. C. Leber purchased the notes and deed of trust on February 9, 1949. At the time of th payment of the 36th month interest note on September 25, 1950 plaintiffs renewed the insurance on the property in the amount of $3,800. The policy of insurance in that amount, issued under date of October 7, 1950, was not delivered to defendants Mrs. and Mrs. J. C. Leber until after October 7, 1950. George Pickles died on October 17, 1950. On February 21, 1951, approximately one month prior to the time the 42nd month interest note fell due, Mrs. J. C. Leber communicated by letter with plaintiffs, disclosing to plaintiffs for the first time that she had bought the deed of trust from George Pickles, and stating that since the death of Mrs. Pickles she had been informed by his business associate, William Robinson, that she 'could do her own collecting.' This was the first information that plaintiffs had that their note and deed of trust had been sold to the Lebers. Shortly before the interest note became due on March 22, 1951 plaintiffs tendered $95 in payment of the interest note. The Lebers refused to accept $95 in payment of the interest note then about to become due, claiming that the interest due was $112.50 on an unpaid principal balance of $4,500. Plaintiffs, considering that they owed interest only on a balance of $3,800, consulted a lawyer, Hon. Raleigh McCormick of Clayton, who wrote to Mrs. J. C. Leber asking for an explanation. Mrs. Leber replied, stating that George Pickles died on October 17, 1950; that she was doing her own collecting; that the loan was in the amount of $4,500 and the interest note was $112.50 and that she had paid George Pickles $4,500 for the deed of trust which she, and not Pickles, had held since the date of purchase. At all times during the controversy between plaintiffs and the defendants Leber, plaintiffs have tendered payment of $95 for interest note No. 7 upon a claimed principal balance of $3,800, and defendants Leber have continually refused to accept this amount, claiming that the principal balance is $4,500 and that the amount due on interest note No. 7 is $112.50. Foreclosure proceedings were finally instituted by Mrs. J. C. Leber, following which this suit was filed on September 25, 1951. Thereafter the real estate was sold by plaintiffs and pursuant to an agreement between the parties the amount in dispute between plaintiffs and defendants ($700 principal and $52.50 interest) was deposited in the office of the circuit clerk, there to be impounded pending the final determination of the cause.
The chancellor found that Mrs. J. C. Leber paid $4,500 for the note but because of payments...
To continue reading
Request your trial
-
Hochrein v. Balthasar
...v. Leber, Mo.App., 267 S.W.2d 333 and Hamilton v. Hecht, Mo.App., 283 S.W.2d 894, both of which cases were decided by this court. In Kraemer v. Leber the plaintiffs borrowed the sum of $5,000 from one Pickles, a real estate dealer, and executed a principal note therefor, due in five years, ......
-
Roy v. Tinsley
...257 S.W. 836; Wyse v. Miller, 222 Mo.App. 165, 2 S.W.2d 806; Klaber v. Fidelity Bldg. Co., Mo.App., 19 S.W.2d 758; Kraemer et al. v. Leber et al., Mo.App., 267 S.W.2d 333; Hamilton v. Hecht, Mo.App., 283 S.W.2d 894; and Mechem on Agency, 2d Ed. Vol. 1, Sec. The law as declared in the cases ......
-
United Missouri Bank, N.A. v. Beard
..."where one of two innocent parties must suffer, the loss must fall upon the one whose negligence caused the loss," Kraemer v. Leber, 267 S.W.2d 333, 338 (Mo.App.1954), as between UMB, the Walkenhorsts, and the Beards, the Walkenhorsts should bear the loss in this case due to the neglect of ......
-
Hamilton v. Hecht, 29200
...since they failed to ascertain that Meckel owned the notes or had them in his possession for collection purposes. Kraemer v. Leber, Mo.App., 267 S.W.2d 333. We hold that the record discloses an implied authority to Meckel to receive and collect payments of principal and interest notes belon......