Love v. Scott
| Decision Date | 04 May 1914 |
| Citation | 166 S.W. 859,179 Mo.App. 351 |
| Parties | M. G. LOVE, Appellant, v. F. H. SCOTT, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Chariton Circuit Court.--Hon. Fred Lamb, Judge.
AFFIRMED.
Judgment affirmed.
John D Taylor for appellant.
J. A Collet for respondent.
This suit was begun in the circuit court of Chariton county November 27, 1912, to replevin two horses, one mare, one farm wagon, one disc harrow, one corn planter and two sets of harness, of the total value of $ 500. Verdict and judgment were for defendant and plaintiff appealed.
Plaintiff, who lived in Illinois, owned a farm of 160 acres in Chariton county, Missouri, near Mendon and early in the year 1912, entered into an agreement with defendant who also lived in Illinois, to remove to the farm and occupy it during the ensuing crop year as his tenant. A written lease was entered into which fixed the rental for the year at $ 864, and defendant executed and delivered to plaintiff his promissory note for that sum to become due and payable without interest on February 20, 1913. Defendant owned some live stock and farm implements but had no money and plaintiff advanced him money for removal expenses, to purchase needed implements and tools and to live on until harvest. The sum of all such advances was about $ 1900, and plaintiff received a promissory note from defendant for a portion thereof, amounting to $ 1025. This note was dated April 4, 1912, and matured February 20, 1913. It bore interest from date and was secured by a chattel mortgage on all of defendant's personal property. The remainder of the advances was left in the form of an open account.
About October 1, 1912, and before the maturity of either of the described notes defendant became dissatisfied and resolved to give up the farm and return to Illinois. His total indebtedness to plaintiff was $ 2740.22, consisting of the rent note of $ 864, which was secured by a landlord's lien on the crops, the note of $ 1025 secured by the chattel mortgage covering all of defendant's personal property on the farm, and the unsecured open account for the remainder. Also he owed a debt of $ 329.35 to a Mr. Stewart for some property he purchased for use on the farm and some other small debts to merchants. In furtherance of his purpose to terminate the tenancy defendant entered into negotiations with plaintiff which culminated in an agreement to sell at public sale all the property covered by the landlord and chattel mortgage liens. Both notes were to be treated as due for the purposes of the sale and the distribution of the proceeds and plaintiff agreed to release all the property from his liens which were to attach to the proceeds of the sale. The property bought of Stewart was to be sold at the same time and its proceeds applied, first, to the payment of his claim. A clerk of the sale was agreed upon and invested with the duty of receiving the proceeds and distributing them in accordance with the agreement of the parties. There is no dispute in the evidence over any of these facts but there is a sharp and vital controversy over the terms of the agreement relating to the share of the proceeds plaintiff was to receive. He contends that first they were to be applied to the payment of his entire demand, including the open account and that defendant was to have the remainder. On the other hand, the evidence of defendant discloses an agreement that the proceeds were to take the place of the property and be subject only to the discharge of the liens which were merely transferred from the property to its proceeds and that the unsecured open account was to remain as it was. In other words, the clerk of the sale, who was made a trustee of the proceeds was to apply them, first, to the discharge of the liens amounting to about $ 1900, and then pay the remainder to defendant.
The evidence of defendant on that issue is substantial--indeed, is so strong that if we were sitting as triers of fact we would say, as did the jury, that he had the better of the controversy.
The sale was made and the property covered by the liens was sold under the announcement of plaintiff that he released it from his liens. Exclusive of the Stewart debt which was paid out of the proceeds of the property defendant had purchased of him, the proceeds realized from the property and paid to the clerk amounted to about $ 2300, a sum greater than was required to discharge both liens, but not enough to pay the open account held by plaintiff. Shortly after the sale defendant gave plaintiff a written order on the clerk for the proceeds but on reflection concluded he had acted unwisely and countermanded the order, but not until after plaintiff had obtained $ 1000 on it. In addition to this payment plaintiff received $ 444 from the sale, making a total of $ 1444, which if applied on the two lien notes would have reduced the amount due on them to $ 498.56. Instead of doing this he applied these payments, first...
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