Lohrer v. Chas. F. Vogel Real Estate Co.

• Citation: 239 S.W. 1098
• Decision Date: 04 April 1922
• Docket Number: No. 17014.,17014.
• Parties: LOHRER v. CHAS. F. VOGEL REAL ESTATE CO.
• Court: Missouri Court of Appeals

239 S.W. 1098

LOHRER v. CHAS. F. VOGEL REAL ESTATE CO.

No. 17014.

St. Louis Court of Appeals. Missouri.

April 4, 1922.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Katie Lohrer against the Chas. F. Vogel Real Estate Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Peers & Peers and John P. Collins, all of St. Louis, for appellant.

M. U. Hayden and Anderson, Gilbert & Wolfort, all of St. Louis, for respondent.

NIPPER, C.

This is an action to recover on a written guaranty, whereby it is alleged that defendant guaranteed the payment of a certain note for $2,800, and interest, as the same became due.

The petition alleges that defendant sold plaintiff a certain note, executed January 4, 1911, by Eliza A. Bridgewater, payable to the order of Henry J. Hirsch, three years after date, for $2,800, bearing interest from maturity at 8 per cent., and indorsed in blank by Hirsch, without recourse; that said defendant guaranteed in writing the payment of said note and interest when each became due on January 4, 1914, and, with the consent of defendant, the time for payment was extended to January 4, 1917, and was not paid; that there was due said sum of $2,800, with interest from January 4, 1917, when suit was filed; that, on December 31, 1917, said interest was paid to that date, and $1,857.51 was paid on the principal from the proceeds of the foreclosure of a deed of trust securing said note, leaving a balance of $942.49, which defendant has refused to pay. The suit is to recover this amount.

Upon motion of defendant, plaintiff filed the written instrument which was marked plaintift's Exhibit A, it being a folder or cover in which there was a deed of trust and note, and on said folder or cover was the following writing:

"Loan No. 7431, first deed of trust on property of Mrs. Eliza Bridgewater, No. 2844 St. Louis avenue, amount $2,800 dated January 4, 1911, renewed for three years from January 4, 1914, principal note $2,800. `We hereby guarantee the payment of principal and interest as same become due.' [Signed] Charles F. Vogel Heal Estate Company by Oliver Vogel, Vice President."

The answer alleges that, about January 3, 1911, defendant, as agent of Eliza A. Bridgewater, negotiated and sold to plaintiff a certain note of said Bridgewater, of the above-mentioned date, for the sum of $2,800 secured by a deed of trust on certain real estate in the city of St. Louis; that, upon the sale of this note, defendant, in writing, guaranteed the payment of the principal and interest, and that said note became due on January 3, 1914; that, on or about the last-named date, plaintiff extended the maturity of said principal note for three years, and accepted from said Bridgewater six interest notes, each for $84, payable at intervals of six months, in lieu of the interest on the principal note; that the extension of said principal note was not within the terms of said guaranty, and was made without the consent of defendant.

Upon a trial before the court, a jury having been waived by both parties, plaintiff recovered judgment, and defendant appeals.

Plaintiff's Exhibit I was the regular form of promissory note, dated January 4, 1911, signed by Eliza A. Bridgewater, and payable three years after date to the order of Henry J. Hirsch, for $2,800, at 6 per cent., and bearing 8 per cent. interest after maturity, and indorsed by the said Henry J. Hirsch, "without recourse," and renewed for three years. The deed of trust was Introduced, as well as a trustee's deed.

Plaintiff testified that, at the time the guaranty was written and signed, which was at the last renewal, she told Mr. Vogel she would have to have her money because the place was being run down, nothing was being paid on the note, and no repairs made on the premises, at which time Mr. Vogel told her if she would take or renew the note once more they would try to sell it, and if they didn't sell it they were responsible and would pay her. She says she then told Mr. Vogel that, if he could give her a guaranty, she would take the note, because, she says, she had known Mr. Vogel as president of defendant company for 25 years and trusted him. He took her over to Mr. Ollie Vogel's desk, advised Ollie what to do, and Ollie wrote the guaranty on the envelope and turned it over to her. She says this was the only condition on which she agreed to the renewal, and would not have agreed under any other circumstances.

Oliver C. Vogel testified for the defendant that he was vice president of the defendant company, and had been from 1913 to 1917; that he placed the writing in question on the envelope by the authority of the by-laws of the company. The articles of incorporation of the defendant company, as well as its bylaws were introduced in evidence. Vogel testified, on cross-examination, that, at the time he indorsed this guaranty on this envelope, this note was extended for three years from January 3, 1914, and that he, on behalf of defendant, made this guaranty in consideration of plaintiff's agreeing to that extension.

It is first urged that the guaranty is void for its indefiniteness and uncertainty. However, by referring to plai...