Krizek v. Treybal

• Decision Date: 02 April 1929
• Docket Number: No. 20390.,20390.
• Parties: KRIZEK et al. v. TREYBAL.
• Court: Missouri Court of Appeals

15 S.W.2d 382

KRIZEK et al. v. TREYBAL.

No. 20390.

St. Louis Court of Appeals. Missouri.

April 2, 1929.

Rehearing Denied April 16, 1929.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Suit by Louis Krizek and others against Lucy Treybal, administratrix of Fred. Treybal, deceased. From the decree, defendant appeals. Affirmed.

Edward W. Tobin and Irvine Mitchell, both of St. Louis, for appellant.

Clarence M. Barksdale, of St. Louis, for respondent.

HAID, P. J.

This suit was instituted in the circuit court, seeking the surrender and cancellation of a principal note of $3,000 and 6 semiannual interest notes for $90 each, all dated June 30, 1922, and grows out of the following situation:

To secure the notes mentioned, the makers thereof executed a deed of trust upon property which they owned in the entirety to Thomas F. Pechan, as trustee for Andrew T. Pechan, which deed of trust was duly recorded.

On June 15, 1925, the Krizeks executed another principal note for $4,000 and 6 semiannual interest notes for $120 each, all secured by a first deed of trust, dated June 15, 1925, and another note for $2,000 secured by second deed of trust; said deeds of trust being made to Thomas F. Pechan, trustee for Andrew T. Pechan, which it is alleged were executed to pay the $3,000 note above referred to and a balance due upon 54 notes for $25 each, secured by a second deed of trust for $1,350, dated June 30, 1922.

Fred. M. Treybal acquired the principal note for $3,000 and the last interest note for $90, dated June 30, 1922, for a consideration of $3,000, on February 9, 1926, approximately seven months after the maturity of those notes. Jennie Pollak, a nonresident of the city, one of the plaintiffs, acquired the principal note for $4,000, together with the semiannual interest notes all dated June 15, 1925, on June 30, 1925, for which she paid Thomas F. Pechan the sum of $4,000. All of the notes heretofore mentioned were made payable to Andrew T. Pechan, a brother of Thomas F. Pechan, and were indorsed by the former in blank.

The testimony of Louis Krizek, one of the plaintiffs, was to the effect that he had been doing business with Thomas F. Pechan for some 15 or 16 years, had confidence in him and trusted him; that, when the $4,000 and $2,000 deeds of trust were executed, he left with said Pechan the prior note and deed of trust for $3,000 for the purpose of having that deed canceled of record. This note was not marked paid nor canceled. After telephoning Pechan several times concerning the $3,000 deed of trust, he was finally handed some papers in an envelope, and, assuming that the envelope contained the canceled deeds of trust, he did not examine the contents of the envelope until after he learned that Pechan had disappeared in April, 1926, when he discovered that the envelope did not contain the $3,000 deed of trust. The books of account of Thomas F. Pechan, in the hands of the receiver, who was appointed after Pechan's disappearance, show the transaction as related by the plaintiff; that is, Krizek was charged with the $3,000 deed of trust and the last interest note and many other items, including the cost of the release of the two deeds of trust, and was credited with the $4,000 and $2000 deeds of trust. In rebuttal he testified that he did not place his property in the hands of Pechan for sale; did not tell Pechan he wanted to sell it, and did not execute any new notes on the $3,000 deed of trust, nor agree to execute an extension agreement.

At the time of the appointment of the receiver, the principal note for $3,000 and the 6 semiannual interest notes were found among the assets of Thomas F. Pechan.

Mrs. Jennie Pollak testified that she acquired the principal note for $4,000 and the 6 semiannual interest notes for $120 each from Thomas F. Pechan on June 30, 1925, and paid him therefor $4,000.

The testimony of Fred. M. Treybal was to the effect that on February 9, 1926, he purchased the $3,000 deed of trust from Thomas F. Pechan, who promised to secure new notes from the maker; that he returned to Pechan the principal note and the one interest note for the purpose of securing new notes, and received from him a receipt; that Pechan stated that the makers of the note were negotiating a sale of the property, and that new notes would be ready in a few days; that he relied upon the statements of Pechan, and that he had no knowledge that the notes referred to had been paid, and had no knowledge that the documents had been left with Pechan for the purpose of having the same released of record; that he relied upon the fact that Pechan had possession of these papers and upon what Pechan said in connection with them; that he had previous transactions with Pechan from whom he had purchased other deeds of trust; that between the date of the purchase of the notes and deed of trust and the appointment of the receiver on April 16, 1926, he made two attempts to get the promised papers from Pechan, and his suspicions were not aroused by the fact that the last interest note was unpaid; that he did not think of the advisability of seeing the Krizeks to ascertain why the extension agreement had not been entered into, because he did not suspect anything.

Mrs. Treybal testified that she made at least six trips to Pechan' office, but he was out on each occasion, and she left messages for him to communicate with her, and he did communicate with her twice and assured her that as soon as they settled he was going to have the notes for her.

Fred. Treybal, Jr., testified that on April 3, 1926, he took the $3,000 principal note and the $90 interest note to Pechan's office to be extended, for which a receipt was given him, signed by Pechan's cashier.

The defendant sets out 22 assignments of error, many of them addressed to the action of the court in making a finding of facts in favor of plaintiffs, to the declarations of law made by the court, to its refusal to make the findings requested by defendant, and to its refusal to make the declarations of law requested by the defendant, and the balance are directed to the decree entered by the circuit court.

As to those assignments of error directed to the finding of facts, those given as well as those refused, since the present proceeding is an equitable action, and section 1402 of the Revised Statutes 1919, has been held to apply only to actions at law (Kuczma v. Droszkowski, 243 Mo. 61, 147 S. W. 1000), and that the appellate court will not be bound by findings made by the trial court, but will review the whole evidence (Fitzpatrick v. Weber, 168 Mo. loc. cit. 573, 68 S. W. 913; Pitts v. Pitts, 201 Mo. 360, 100 S. W. 1047; Miller v. McCaleb, 208 Mo. loc. cit. 574, 106 S. W. 655), we need not further consider the errors so assigned.

Neither can error be predicated or assigned upon the giving, or the refusal to grant, a demurrer to the evidence, or to give requested declarations of law in an equity case (Lee v. Lee, 258 Mo. loc. cit. 604, 167 S. W. 1030; Jacobs v. Cauthorn, 293 Mo. loc. cit. 162, 238 S. W. 443), so that those assignments of error need not be considered.

It is also assigned as error that the circuit court erred in sustaining a motion to strike part of defendant's answer. This assignment is unimportant, because (1) no bill of exceptions was presented or allowed at the term when the order was made, and (2) the court permitted evidence to be introduced upon the allegations set out in the portion of the answer which was stricken.

We come, therefore, to a consideration of the correctness of the decree that was entered.

The first contention made by the defendant is that there is no evidence showing the authority of Thomas F. Pechan to accept the payment of the $3,000 deed of trust. The evidence does show that the paper was indorsed by the payee and was in the hands of Thomas F. Pechan, so that he was the holder of the paper, as well as the trustee in the deed of trust. The defendant acquired the paper from Thomas F. Pechan, and whatever his rights are, are dependent upon the fact that Thomas F. Pechan was the holder of the paper. We can, therefore, see nothing in the contention on this point. If the question had arisen between the makers of the paper and Andrew T. Pechan or his assigns other than Thomas F. Pechan, and the plaintiffs paid the amount to Thomas F. Pechan, then the situation would have been quite different and would have come within the authorities relied upon by the defendant. Thus, in the case of Maguire v. Donovan, 108 Mo. App. 511, 84 S. W. 156, the question arose between the purchaser of paper before maturity and the maker of the paper, the maker having paid money owing upon a note to the trustee named in the deed of trust, who, previous thereto, had parted with the possession of the paper and was not authorized to receive payment thereon. White v. Kehlor, 85 Mo. App. 557, was a similar case to the one last referred to. Neither are the other cases cited upon this proposition applicable to the facts here present.

No question whatever seems to have been made as to the genuineness of the signature of Andrew T. Pechan, and, although the latter was made a party to the suit, he asserted no claim of right to the paper. In addition to this, however, the books of Thomas F. Pechan in the hands of his receiver show the transaction as the plaintiffs claim, as hereinbefore recited.

The next point made by the defendant is that, notwithstanding the fact that Thomas F. Pechan was the owner and holder of the $3,000 note and deed of trust, in view of the fact that the $4,000 and $2,000 notes and deeds of trust were executed prior to the maturity of the $3,000 deed of trust, the plaintiffs became the holders thereof, and, because they then might have re-issued the paper, they are estopped, by reason of their negligent conduct, to relief in this case. True, if Thomas F. Pechan had disposed of the paper between June 15, 1925...