Lorenz v. Morney
| Decision Date | 11 January 1926 |
| Citation | 282 S.W. 59,221 Mo.App. 409 |
| Parties | F. A. LORENZ, RESPONDENT, v. CHARLES A. MORNEY, ET AL., APPELLANTS. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Cooper County.--Hon. Henry J Westhues, Judge.
REVERSED.
Judgment reversed.
W. V Draffen, D. W. Shackelford and Montgomery, Rucker & Hayes for respondent.
W. G Pendleton and R. D. Williams for appellant.
Trimble, P. J., absent.
This is an action for specific performance brought by one of the parties to a tripartite agreement.
The petition alleges that in April, 1920, plaintiff was the owner of a tract of seventy-seven acres of land in Cooper county, Missouri, which, at that time, he desired to sell; that defendant Morney was willing to purchase said land for $ 3500 if he could secure a loan for that amount upon said seventy-seven acres and an adjoining twenty acres which was already owned by Morney; that Morney applied to defendants Nixon & Brosius who were engaged in a loan business at Boonville, Mo., for the proposed loan; that plaintiff and defendants Morney, Nixon & Brosius entered into an agreement whereby plaintiff was to sell said seventy-seven acres to Morney for $ 3500 and Morney was to execute to Nixon & Brosius his promissory note for $ 2200, to be secured by a first deed of trust on the seventy-seven acres and the twenty-acre-tract above mentioned, for which Nixon & Brosius were to acknowledge payment of $ 700 which Morney owed them and were to pay Morney $ 1500 which Morney, in turn, was to pay plaintiff as part of the purchase price of the seventy-seven acres; Morney also was to execute to plaintiff his note in the sum of $ 2000, secured by a second deed of trust on both tracts, and said Nixon & Brosius were to take up his last-named $ 2000 note within the calendar year of 1920; that in accordance with said agreement plaintiff conveyed his seventy-seven-acre-tract to Morney who, as per agreement, executed his notes and deeds of trust in blank and left them with Nixon & Brosius to be filled out in accordance with the said agreement but that defendants Nixon & Brosius wrongfully and fraudulently filled in the blanks in a manner different from that agreed upon, in this, to-wit: That one note was filled in for $ 700, another for $ 2500, and one of the deeds of trust was filled in on the twenty-acre-tract to secure the said $ 700 note; that a deed of trust was filled in to secure the said $ 2500; that defendant Morney executed to plaintiff his note for $ 2000 secured by a second deed of trust on the seventy-seven-acre-tract, and that plaintiff recorded same without knowledge of the wrongful acts of defendants Nixon & Brosius relative thereto.
The petition pleads repeated demand for defendants Nixon & Brosius to take up the note as per agreement and alleges that no part of the principal or interest of said note has been paid; that the interest and principal of the $ 700 and $ 2500 first mortgage notes are due and unpaid, and that defendants Nixon & Brosius are threatening foreclosure on the deeds of trust securing the same; and that plaintiff was at all times ready and willing to indorse said $ 2000 note to Nixon & Brosius whenever they carried out their agreement. The petition prays an injunction restraining defendants Nixon & Brosius from foreclosing the aforementioned first deeds of trust, and asks that they be required specifically to perform their contract with plaintiff to take up said $ 2000 note, and for other proper relief.
The answer of defendant Morney admits all the allegations of the petition. The separate answer of defendants Nixon & Brosius is a general denial and an allegation that they do not own either the $ 700 or the $ 2500 note mentioned in the petition.
On motion of defendants Nixon & Brosius, plaintiff elected to go to trial upon that part of the petition asking specific performance of the alleged contract. Therefore that part of the petition asking for an injunction is eliminated from the case. A jury was waived and the case went to trial to the court, resulting in a judgment for plaintiff and against defendants Nixon & Brosius, directing specific performance on the part of said defendants of the contract alleged in the petition and fixing plaintiff's damages in the sum of $ 2108.
Motions for a new trial and in arrest of judgment, duly filed, were overruled and defendants Nixon & Brosius appeal.
We have carefully read the evidence of record and find that the evidence in behalf of plaintiff tends to support the allegations of the petition, including testimony of plaintiff and his wife and Morney and his wife. The evidence in behalf of defendants Nixon & Brosius, both of whom testified at the trial, is flatly contradictory of plaintiff's testimony as to the exact terms of the contract and agreement. Nixon testified that Morney was to pay $ 4000 for plaintiff's seventy-seven acres of land, $ 2000 in cash and $ 2000 by note secured by a second deed of trust, and that Nixon actually paid plaintiff this money by giving him credit for $ 2000 on a tract of land in Texas which Nixon had sold to him while Nixon was acting as agent for the Stewart Land Company of Kansas City. Nixon denied the testimony of plaintiff to the effect that he (Nixon) had fraudulently caused the notes and deeds of trust signed by Morney in blank to be filled in contrary to the tripartite agreement.
In support of the appeal, only two questions are raised, viz., (1) this being an action at law the facts were triable by a jury and there was no waiver of a jury as provided in section 1400, Revised Statutes 1919; and (2) that the alleged agreement or contract to take up the $ 2000 note given plaintiff and which was secured by the second deed of trust, was nothing more than a contract to purchase personal property of a value in excess of $ 30, and comes within the provisions of section 2170, Revised Statutes 1919, and there was no evidence to sustain a contract under the requirements of said section.
As to the first of these points, it is only necessary to refer to the abstract of the record, as furnished by defendants, where we find the following:
"Be it ever remembered, that heretofore, to-wit, on Monday, the 10th day of November, 1924, the same being one of the judicial days of the October adjourned term, 1924, of the circuit court of Cooper county, Missouri, held at the county court house in the City of Boonville in the county and State aforesaid, before the Hon. H. J. Westhues, the regular judge of said court, without the intervention...
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