Main St. Bank v. Ennis
| Decision Date | 11 June 1928 |
| Citation | 7 S.W.2d 391,222 Mo.App. 915 |
| Parties | MAIN STREET BANK, RESPONDENT, v. JAMES ENNIS, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. A. Stanford Lyon, Judge.
AFFIRMED.
Judgment affirmed.
Milton Schwind for appellant.
Harzfeld Beach & Steeper for respondent.
Trimble, P. J., absent.
Action to recover balance due on a promissory note. Plaintiff recovered judgment in the sum of $ 707.38 and defendant appealed.
The petition is in conventional form.
The substance of defendant's answer is that prior to the execution of the note in suit, one A. G. Arnold and the plaintiff each owned a note, both of which were secured by a deed of trust on certain real estate in Kansas City Missouri; that by the terms of said deed of trust, plaintiff's note was entitled to priority of payment; that both notes were due and plaintiff was threatening to foreclose; that Arnold and plaintiff agreed that plaintiff should foreclose the deed of trust, and if no one bid sufficient to pay plaintiff's note, Arnold would bid in the property then give plaintiff bank his note for the amount of its claim and secure it by a first deed of trust on the property; that the property was sold under the deed of trust and a real estate firm by whom defendant was employed, bid in the property for Arnold, and, for convenience, took the title in defendant's name; that no money was paid on said bid but, defendant, at the direction of his real estate firm, executed to plaintiff the note in suit and a deed of trust on the property to secure it; that A. G. Arnold endorsed the note; that defendant did not know that the title to the property had been taken in his name until his employer, the real estate firm representing Arnold, requested him to execute the note and deed of trust to plaintiff; that neither Arnold or the plaintiff ever requested defendants to execute the note or in any way lend his credit to Arnold; that defendant did not sign the note for the purpose of lending his credit to Arnold but only because the title had been placed in his name by mistake and he was informed that his signing the note was a mere matter of form for the purpose of giving plaintiff a lien on the property.
It is contended that the trial court erred, (1) in excluding testimony that prior to the execution of the note in suit plaintiff and Arnold agreed that if there were no bidders at the sale under the deed of trust securing their notes, Arnold could bid in the property and give plaintiff his note for the amount of plaintiff's claim, (2) erred in excluding testimony that the note owned by Arnold was junior to the note owned by plaintiff, (3) erred in excluding testimony that there was no money paid to the trustee who made the sale under the deed of trust, (4) erred in excluding testimony that plaintiff's attorney required Arnold to endorse the note and at the time said to him, "This is your property and your deal," (5) erred in excluding testimony that after Arnold endorsed the note, he gave plaintiff's attorney a check and (6) erred in excluding testimony that plaintiff, in its instructions to its attorney, did not require the signature of anyone except Arnold on the note. Defendant also contends that there was no consideration for his signing the note. We will consider these contentions together because it is claimed that the evidence rejected by the court tended to show want of consideration.
If plaintiff and Arnold each owned a note secured by the same deed of trust, with plaintiff's note entitled to priority of payment, and Arnold, in order to secure more time to work out the collection of his note, made an agreement with plaintiff that the deed of trust should be foreclosed and he would bid in the property, then execute his note to plaintiff bank for the amount of its claim, and secure it by a deed of trust on the property, and such agreement was carried out, there would be no question but what there would be a valid consideration for the note as between plaintiff bank and Arnold. The question confronting us is whether or not there was a consideration as between defendant and the bank.
The deed of trust was foreclosed. H. R Ennis, a member of a real estate firm that represented Arnold in this transaction, attended the foreclosure sale, bid in the property for Arnold, took the title thereto in the name of defendant, who at that time was in the employ of said real estate firm. Ennis testified that Arnold's wife was sick and at that time lived at Excelsior Springs and for that reason he had the title to the property taken in the name of defendant...
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