Major v. Putney

• Decision Date: 21 February 1927
• Docket Number: No. 19256.,19256.
• Citation: 293 S.W. 81
• Parties: MAJOR et al. v. PUTNEY et al.
• Court: Missouri Court of Appeals

293 S.W. 81

MAJOR et al. v. PUTNEY et al.

No. 19256.

St. Louis Court of Appeals. Missouri.

February 21, 1927.

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

"Not to be officially published."

Suit for accounting and to restrain foreclosure under certain deeds of trust by Alex H. Major and Harry J. Shaw, doing business as Major & Major, against L. D. Putney, Putney Realty Company, and Frances E. Austin. Judgment for defendants, and plaintiffs bring error. Affirmed.

W. G. Carpenter and George C. Mackay, both of St. Louis, for plaintiffs in error.

Lubke & Lubke, of St. Louis, for defendants in error.

DAUES, P. J.

This is a proceeding in equity wherein plaintiffs in error, hereinafter referred to as plaintiffs, seek an accounting from defendants in error, hereinafter referred to as defendants, and also seek to pay whatever balance may be found to be properly due defendants, and to restrain defendants from foreclosure under certain deeds of trust. The cause was heard in the circuit court of the city of St. Louis, where plaintiffs' bill was dismissed. Plaintiffs in due time sued out this writ of error.

The bill is in two counts, each being the same, except that the first count involves notes and a deed of trust on No. 2930 Olive street, and the second count relates to No. 2932 Olive street, all in the city of St. Louis.

It is averred that on April 15, 1921, plaintiffs were owners of the property, and borrowed money from defendants, giving two sets of notes, each set secured by a separate deed of trust for the face amount of $1,750 on the respective two pieces of property. It is alleged, however, that the cash actually received by plaintiffs from defendants was $1,295.50 in each case; that the difference of $454.50 represented commissions exacted for the money. It is then alleged that plaintiffs have paid $700 of the principal amount, and $50.75 interest in each case, and, desiring to liquidate the indebtedness without awaiting final maturity of the notes, seek to pay in full the amount actually due the defendants; that defendants, however, demand the entire amount of the notes, with interest, less the payments made; and that plaintiffs, believing the transaction to be usurious, "tendered, or tried to tender," to defendants the amount received by them, plus legal interest; that this amount is $595.50 in each ease; that defendants refuse to accept the tender, but demand the amount called for in the notes.

The answer is a general denial, coupled with allegations that the petition fails to state facts for equitable relief; that there is an adequate remedy at law; no payment into court of the amount tendered; and ask for a dissolution of the temporary injunction whicl had therefore been issued.

When the suit was filed, an order to show cause was issued, return was made, and a temporary injunction was issued to restrain a foreclosure of the deeds of trust.

The assignments of error are that the judgment is not supported by the evidence, and is against the law of the case, and that there was a misreception of evidence.

The proof is mostly oral, and a statement of the facts is not entirely free from difficulty since the evidence on the vitals of the case is hopelessly in contradiction.

Plaintiffs' first witness was the defendant Frances E. Austin, the 82 year old mother of the defendant L. D. Putney. This witness testified that she bought the notes in question, Ind that they were paid for with her money, the purchase being made for her by her son, a D. Putney, and that the money was taken out of the funds of the Putney Realt;r Company, a Missouri corporation, which she owned almost entirely, there being two q mlifying shares, one owned by her son, Putney, and the other by one Mahan. The check given for the notes was that of the realty company, through which company Mrs. Austin said her banking business was done. Plaintiffs introduced a letter from defendant Putney which accompanied the check, in which Putney said: "I am buying" the two deeds of trust, etc.

George R. Hunsche, a witness for plaintiffs, testified that as a title examiner he took some part in this transaction; that he received the letter from Putney, saying: "I am buying these deeds of trust"; that he received the notes and papers from plaintiffs, and timed them over to Putney, and in turn paid ihe money to Major by crediting his account.

Plaintiff Major testified that he borrowed the m iney from Putney personally; that it was strictly a loan; and that Putney instructed this plaintiff that he (Putney) should be ma le the trustee; that the witness never heard of Mrs. Austin or of the Putney Realty Compt.ny in the transaction; that for the $1,750 in notes he actually received but $1,295.50 on each set; that the difference represented the commission charged him and agrees upon; that Putney said to him that he wa 3 going to make a charge of $454.50 on each $1,750 loan. He then testified as to the payments actually made. He said he offered to pa:, Putney the legal balance on many occasions, and that he had authorized several a hers to do so; that he was willing to make such payments into court in such sum as the court might finally decree to be due on the notes. It was then shown by evidence that Putney had various unsatisfied judgments standing against him, and was insolvent.

For the defendants, the defendant Putney testified positively and unequivocally that he never had had any negotiations with Major, but that his transactions were conducted with one John R. Dyer, a real estate agent now deceased ; that he dealt with Dyer and Mr. Hunsche entirely throughout the entire matter ; that Dyer was acting for Major, and not for him, nor for any of the other defendants; that Dyer demanded, and was paid, a commission of 5 per cent. for the services rendered to plaintiffs in the matter; that this constituted a part of the difference between the amount of the notes, $3,500, and the check for $2,591, which was given plaintiffs.

Plaintiff Major and witness Mackey testified for plaintiffs to the effect that there was a tender made of the balance due on the notes...