Lumpkin v. Strange
| Decision Date | 01 November 1915 |
| Docket Number | No. 11752.,11752. |
| Citation | 179 S.W. 742 |
| Parties | LUMPKIN v. STRANGE et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Miller County; Jack G. Slate, Judge.
"Not to be officially published."
Action by William M. Lumpkin against William H. Strange and others. Judgment for defendants, and plaintiff appeals. Reversed, and cause remanded.
Robert F. White, of Eldon, for appellant. Barney Reed, of Ulman, and Sid C. Roach, of Linn Creek, for respondents.
This action is based on a promissory note for $130. The judgment in the trial court was for the defendant. Defendant's amended answer admitted the execution of the note. It was conceded that it was given as the purchase price of certain lots in Aurora Springs, Miller county, Mo. It was alleged in the amended answer that there was a partial failure of consideration. It was also alleged that the note had been fully discharged by a verbal settlement between the parties.
The evidence in defendant's behalf was that he bought a large number of lots from plaintiff, an old man over 80 years of age, for which the latter was to make him a warranty deed, with abstract of title, and he, in turn, was to execute a deed of trust on the property to secure the payment of the note. The evidence further showed that these deeds were executed by the parties respectively, but that by mistake plaintiff omitted to include in his deed a part of the ground he was to convey, and likewise defendant omitted it from the deed of trust. The testimony of defendant in his own behalf tended to show that when he discovered the mistake he mentioned it to plaintiff, and that it was thereupon verbally agreed between them that he (plaintiff) need not convey the property omitted, and need not procure an abstract of title, and that plaintiff would deliver up the note, and defendant could keep, without price, the property plaintiff had deeded him.
In the course of this examination the court asked how many lots were conveyed by plaintiff's deed to the defendant, and counsel answered that there were 65. This was not disputed, and defendant admitted that he had sold some of them. When asked if he had not sold as many as 51 of them, he answered: "If I did, I don't recollect it; I don't recollect." He was asked if he had not sold 60 cords of wood off of them at $3 per cord, and also 100 ties. He answered that he had not; but, when asked if he had not sold $300 worth of timber, he answered, "No, I didn't get the third or the fourth" — saying further on, "I worked the timber off...
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Burke v. American Sav. Life Ins. Co.
... ... the jury for decision would have been error. Carroll v ... Campbell, 110 Mo. 557, 49 S.W. 809; Lumpkin v ... Strange, 179 S.W. 742; Stoddart v. National, etc., ... Ins. Co., 251 S.W. 398; Phelps Stone, etc., Co. v ... Norton, 227 Mo.App. 268, 52 ... ...
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Dye v. New York Life Insurance Co.
... ... Wrought ... Iron Bridge Co., 147 Mo.App. 47; Harrington v ... Durham, 273 Mo. 414; Kendall Shoe Co. v. Bain, ... 46 Mo.App. 581; Lumpkin v. Strange, 179 S.W. 742 ... (Mo.); Carpenter v. Railroad Co., 119 Mo.App. 204; ... Couch v. O'Brien, 41 Okla. 76, 136 P. 1088; ... Lathrop ... ...
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Burke v. Am. Savings Life Ins. Co.
...submitted this question of law to the jury for decision would have been error. Carroll v. Campbell, 110 Mo. 557, 49 S.W. 809; Lumpkin v. Strange, 179 S.W. 742; Stoddart v. National, etc., Ins. Co., 251 S.W. 398; Phelps Stone, etc., Co. v. Norton, 227 Mo. App. 268, 52 S.W. (2d) 413; Henry v.......