Leader v. Pennell
| Decision Date | 10 September 1954 |
| Docket Number | Nos. 7204,7205,s. 7204 |
| Citation | 271 S.W.2d 57 |
| Parties | Henry LEADER and Freeda Leader, his wife, Respondents, v. Sam PENNELL, Appellant. Henry LEADER and Freeda Leader, his wife, Appellants, v. Sam PENNELL and Hoyt McDaniel, Respondents. |
| Court | Missouri Court of Appeals |
Henson & Henson, Poplar Bluff, for Henry Leader and another.
Charles T. Bloodworth, Jr., O. A. Tedrick, Poplar Bluff, for Sam Pennell and another.
In this action plaintiffs seek to recover a balance alleged to be due on a promissory note with accrued interest and attorneys fee and a decree ordering the foreclosure of a chattel mortgage on personal property described therein, given to secure said note.
Defendant, Sam Pennell filed a separate answer denying any indebtedness on the note, pleading payment and asking that the note and chattel mortgage be cancelled.
Count II of the separate answer is in the nature of a counterclaim. It states that defendant purchased all of the personal property described in the chattel mortgage for $14,000; that $7,000 was paid in cash and a note secured by chattel mortgage described in plaintiffs' petition was executed for the balance of the purchase price; that defendant has over-paid the note in the sum of $1,500 and that plaintiffs took personal property sold defendants in the above transaction and converted the same to their use in the value of $562. Defendant asks judgment on the counterclaim for $2,062.
The cause was tried before the court and judgment rendered in favor of plaintiffs and against defendants on the petition for $5,000 principal on the note plus $352.35 interest, plus $535.23 attorney fees, making a total of $5,887.58.
It was further adjudged that the chattel mortgage given to secure the payment of the note be ordered foreclosed for the judgment amount heretofore found for plaintiffs, conditioned upon the failure of defendants or either of them to pay the judgment on the note.
The court found for defendant, Sam Pennell, on the counterclaim for the sum of $489 and that Sam Pennell has purchased the interest of his co-defendant in said personal property.
Defendant Sam Pennell appealed from the judgment rendered in favor of plaintiffs on the petition, which is case No. 7204.
Plaintiffs appealed from the judgment in favor of defendant on the counterclaim, which is case No. 7205.
By agreement the cases were consolidated.
The evidence shows that the note sued on was given by defendants as a part of the purchase price for plaintiffs' business, known as Chaonia Boat Landing in Wayne County, just across the Butler County line on Lake Wappapello.
Plaintiffs owned a ten year lease, secured from the government, in 1950, on real estate fronting on Lake Wappapello. They spent some $6,000 in modernizing the house on said land, digging a deep well, and placing the pump therein, painting it and building a dock landing. They owned considerable personal property used in connection with this business which is itemized in the bill of sale executed by plaintiffs to defendants in this transaction.
Some time in June, 1951, a contract of sale was entered into between plaintiffs and defendants wherein plaintiffs sold all of their interest in said business to defendants and agreed to transfer their interest in the lease, of 8 1/2 years that still existed, to the defendants.
Plaintiffs' evidence shows that the purchase price for all of the property was to be $18,000; that on July 1, 1951, possession of this property was turned over to defendants who made two payments prior to the bill of sale of $500 each on the purchase price. The first $500 payment, dated August 1, 1951, is shown by defendants' exhibit (B), a receipt from plaintiffs. The second $500 payment, made September 2, 1951, is shown in evidence by defendants' exhibit (C).
Plaintiffs' evidence is that $4,000 was to be paid for the improvements made by plaintiffs on the leased property which became a part of the real estate and the property of the government at the termination of the lease but the use thereof was transferred to defendants. Plaintiffs say that this $4,000 was not to be a part of the written bill of sale and that said $4,000 was paid by the two $500 payments above set out and by $3,000, a part of a $5,000 check paid plaintiffs by the wife of defendant, McDaniel, which was made September 11, 1951, and prior to the delivery of the bill of sale to defendants.
Plaintiffs say that defendant, Pennell, paid two $1,000 payments, which are shown by credits on the note sued on, one made October 9th, and the other December 14th, 1951; that these payments were made by check, the latter being dated November 24th.
The bill of sale, the note sued on and the chattel mortgage securing it, were dated September 1, 1951, but not delivered until after the $5,000 McDaniel check was paid September 11, 1951, marked plaintiffs' exhibit 3 and defendants' exhibit (D), and until after the $5,000.00 payment by Sam Pennell at the Bank of Poplar Bluff, September 12, 1951, which payments completed the $4,000 claimed by plaintiffs for the improvements and $7,000 payment on the $14,000 consideration in the bill of sale, leaving $7,000 due plaintiffs, which is the amount represented in the promissory note sued on and for which the chattel mortgage was given to secure it. The bill of sale is marked defendants' exhibit (A). Plaintiffs' exhibit 1, shown in the record is the promissory note sued on. Exhibit 2 is the chattel mortgage securing the note.
Plaintiffs state that Sam Pennell paid $5,000 September 12, 1951, in the Bank of Poplar Bluff and, at that time, the bill of sale, offered in evidence, was delivered to him, and, at that same time, plaintiff says that the $7,000 note sued on and the chattel mortgage were executed by defendants and delivered to plaintiffs and that the chattel mortgage was duly recorded. Plaintiffs testified that defendant, Pennell, refused to pay the interest due on the note and that McDaniel paid $95 interest which is credited on the back of the note.
Plaintiffs' testimony was corroborated by H. S. McDaniel, one of the defendants, who testified that the consideration to be paid for the property purchased from plaintiffs was $18,000. He stated that he authorized his wife to pay $5,000 by check, $3,000 of which was to apply on the $4,000, which plaintiffs were to receive for the improvements and the other $2,000, together with the $5,000 paid by Pennell, in the Bank of Poplar Bluff, constituted the $7,000 payment made on the personal property represented in the bill of sale, leaving a balance due at the time the note and mortgage were executed by defendants to plaintiffs of $7,000. He stated it was the purpose of defendants to pay for the property purchased out of the profits of the business.
McDaniel testified that when the matter of purchasing the Chaonia Boat Landing was first brought up by Pennell that he, Pennell, and witness Harris discussed going in together to buy it and that Pennell told them it took $18,000 to buy it. He testified that Harris later was left out and that he and Pennell made the purchase. He testified that Pennell approached him about beating plaintiffs out of the $4,000 and he refused to do so. He testified that the receipt given Pennell, by plaintiffs at the bank, September 12, 1951, had included in it $2,000 of the check paid by his wife to plaintiffs.
But, Harris testified for plaintiffs that the agreed price as stated by defendant, Pennell, was $18,000.
William A. Settle testified that he is an attorney at law in Butler County; that he prepared the papers pertaining to the sale by plaintiffs to the defendants of the boat dock at Chaonia Landing, in 1951; that all of the parties discussed the matter with him together in his office, September 1, 1951, when the note, chattel mortgage and bill of sale in this suit were prepared. He stated that Mr. Leader explained to him that defendants were to pay him $4,000 in cash and then he wanted to make them a bill of sale for $14,000. He said in the presence of defendants that that was their agreement. He said in their presence they were to pay $7,000 cash and give him a note for $7,000, secured by a chattel mortgage on the property covered in the bill of sale and he had a list of the property that was to go in the bill of sale, which he gave to the witness for the purpose of preparing it; that there was a discussion as to how the note should be paid and that he prepared the same according to their instructions. He gave this answer: 'A. Well, I told Henry to take the bill of sale and take his wife with him and go before a notary public and sign the bill of sale and have their acknowledgment taken. And I told him further, He then stated he meant the chattel mortgage.
He testified that the payment endorsed on the back of the note the 9th day of October, 1951, for $1,000 was not made on that date but made later by him at his office. He stated that was the payment that was written in pencil. He testified that the parties came to his office together December 14, 1951, when another payment of $1,000 was made; that the payment was made in his presence by check, which is identified in evidence as defendants' exhibit (G). He stated that at the time the check was given it was endorsed on the back, Mrs. Leader took it to the bank and when she got back, he was directed...
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