McKinney v. Lynch, 4958.
| Decision Date | 04 February 1932 |
| Docket Number | No. 4958.,4958. |
| Citation | 45 S.W.2d 874 |
| Parties | McKINNEY v. LYNCH. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Texas County; J. H. Bowron, Judge.
"Not to be officially published."
Action by A. J. McKinney against J. S. Lynch. Judgment for defendant, and plaintiff appeals.
Reversed and remanded.
Hiett, Lamar & Covert and Barton & Moberly, all of Houston, for appellant.
W. P. Elmer, of Salem, for respondent.
Action upon a promissory note. Jury waived, and trial by the court who found for defendant and rendered judgment accordingly. Plaintiff appealed.
The note in suit was executed January 25, 1922, for the principal sum of $4,698, and was signed by R. B. McKinney, J. L. McKinney, and this defendant, J. F. Lynch. The note was made payable to the Texas County Bank at Houston. This bank failed, and its assets went into the hands of the state finance commissioner for liquidation. The note in question with others was sold by the finance commissioner to plaintiff, A. J. McKinney, who brought this suit.
The evidence shows that R. B. McKinney was the principal in the note, and this defendant was surety. It also shows that when this note was given, R. B. McKinney executed a deed of trust to the bank on 160 acres of land in Texas county to secure the payment of this note. This was a second deed of trust, and made subject to a first deed of trust of $3,500. Neither of these incumbrances were paid, but on September 16, 1927, the plaintiff sent the note in suit to C. E. Covert at Houston, Mo., with directions to have the second deed of trust satisfied on the record. This was done in the regular way, and the note was stamped canceled by the recorder of deeds. At the trial, the court found that at the time of this cancellation there was due on the note in suit the sum of $5,408 and the amount due on the note secured by the first deed of trust and taxes amounted to the sum of $4,000. The court also found that at that time the land covered by these deeds of trust was of the value of $10,000.
It is conceded in this case that the release of the second deed of trust without the consent of the surety on the note secured by it released the surety to the extent of the value of the deed of trust released. The court found the value of the land covered by the second deed of trust to be $10,000 at the time of the release. His finding that what was at that time due on the note secured by the deed of trust which was released amounted to $5,408 and that prior liens amounted to $4,000 shows that he found that the property released was worth a little more than the amount due on both incumbrances, and, if that were true, the release of the second deed of trust which was given to secure the payment of the note on which defendant was surety would release him, and that was the main defense in this case.
The only question pressed in this court by appellant is whether the finding of the court that the property covered by the second deed of trust was...
To continue reading
Request your trial
-
State ex rel. State Highway Commission of Mo. v. Kimmell, 53333
...rel. State Highway Commission v. Barron, Mo., 400 S.W.2d 33; Missouri Public Service Co. v. Hunt, Mo.App., 274 S.W.2d 27; McKinney v. Lynch, Mo.App., 45 S.W.2d 874. We hardly need cite authorities to the effect that a witness may not narrate supposed facts told to him by another, when such ......
- State v. Golubski
-
McKinney v. Lynch
...and defendant respectively. For a second time we are confronted with this case, the opinion on the former appeal being reported in 45 S.W.2d 874 wherein cause was reversed and remanded for the reason there was no evidence to sustain the finding of the trial court as to the value of certain ......
-
State ex rel. State Highway Commission v. Jasper, 59473
...rel. State Highway Commission v. Barron, Mo., 400 S.W.2d 33; Missouri Public Service Co. v. Hunt, Mo.App., 274 S.W.2d 27; McKinney v. Lynch, Mo.App., 45 S.W.2d 874. We hardly need cite authorities to the effect that a witness may not narrate supposed facts told to him by another, when such ......