McNealey v. Baldridge
| Decision Date | 15 February 1904 |
| Citation | 78 S.W. 1031,106 Mo.App. 11 |
| Parties | R. A. McNEALEY, Appellant, v. R. B. BALDRIDGE, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Sullivan Circuit Court.--Hon. John P. Butler, Judge.
Affirmed.
Wattenbarger & Bingham and Wilson & Clapp for plaintiff.
(1) The release pleaded by defendant was nudum pactum as between the defendant and the plaintiff. Winter v. Railway, 160 Mo. 159; Harrison Bros. v. Iron Works, 96 Mo.App 348. (2) The most that can be said of the release is, that if not obtained by fraud, it would bar plaintiff from ever molesting the property turned over by defendant to Lindley Baldridge and Stuart. As shown in paragraph 1, it would not bar plaintiff from obtaining a judgment for whatever additional sums he might afterwards pay on the note, or from satisfying it out of any other property of defendant. (3) Under the pleadings and the evidence the plaintiff was entitled to go to the jury. Wells v. Adams, 88 Mo.App. 227; Cardwell v. Stuart, 92 Mo.App. 594; Goodson v. Accident Assn., 91 Mo.App. 352; Robertson v. Shepherd, 165 Mo. 360; Insurance Co. v. Owens, 81 Mo.App. 201. (4) If there was any substantial evidence offered by plaintiff to sustain the issues raised by the pleadings, the court committed error in granting a new trial on the ground he should have sustained the demurrer to plaintiff's evidence. Young v. Webb City, 150 Mo. 333; Bank v. Simpson, 152 Mo 638; Schermerhorn v. Herold, 81 Mo.App. 461.
Harber & Knight, Jas. R. Page and Childers Bros. for respondent.
(1) Plaintiff and his assignor admit that they can read and that they could have read and understood the settlement and receipt, signed by each of them, but did not do so. The law is well settled that under such circumstances, when a party signs an instrument without informing himself of its contents, he has no cause for complaint. Gwin v. Waggoner, 98 Mo. 315; Retzer v. Packing Co., 58 Mo.App. 264. (2) The statement that plaintiff claims Stuart made to him, when he signed the receipt, "that plaintiff was only releasing the property and homestead interest and that McNealey would still retain his right of action against Benton Baldridge," if true, was simply an opinion of law, for which no relief could be granted. Ordway v. Ins. Co., 35 Mo.App. 426; Armstrong v. Winfrey, 61 Mo. 359; Mateer v. Railway, 105 Mo. 352. (3) The plaintiff should, when he discovered the alleged fraud in the settlement and receipt, have immediately rescinded said contract and because of his failure to do so he can not maintain this action. Pub. Co. v. Hull, 81 Mo.App. 227; Smith v. Kander, 85 Mo.App. 33; Retzer v. Packing Co., 58 Mo.App. 264. (4) If plaintiff elected to disaffirm the settlement in consequence of deception practiced upon him, such election in order to avail him must have the chief and essential element of promptitude, and he must put the other party in the same situation as he was before the contract was made. Estes v. Reynolds, 75 Mo. 565. The doctrine in the Estes-Reynolds case is the law to-day, as is found in the following authorities: Clough v. Holden, 115 Mo. 359; Girard v. Wheel Co., 123 Mo. 387; Lewis v. Land Co., 124 Mo. 687; Robinson v. Sipe, 129 Mo. 209; Och v. Railway, 130 Mo. 27; Culbertson v. Young, 86 Mo.App. 277; Jarrett v. Morton, 44 Mo. 275; Alexander v. Railway, 54 Mo.App. 71; Retzer v. Packing Co., 58 Mo.App. 264; Kirk v. Seeley, 63 Mo.App. 262.
The defendant executed to the Sullivan County Bank his promissory note for $ 1,250 on which the plaintiff became surety. The defendant also executed to said bank his further note for $ 900 on which one Ed Calhoun became surety. He (defendant) owned a farm of 208 acres which he mortgaged to Sullivan county to secure the payment of $ 3,500 payable to the school fund. About the time the notes first referred to were about to mature the defendant discovered that his debts were much in excess of his assets; that his indebtedness aggregated about $ 12,624.75. Included in his indebtedness was a further note to the Sullivan County Bank for $ 2,000 on which H.C. Stuart--a brother-in-law--was surety, and also two notes to L. M. Baldridge--a brother--amounting to two thousand dollars. The defendant's rights and equities in the farm already referred to were of the value of about $ 2,500. The defendant on December 19, 1900, executed to said Stuart a second mortgage on said farm to indemnify the latter against any loss he might sustain by reason of his suretyship on said $ 2,000 note to said Sullivan County Bank. And about the same time defendant sold to his said brother, L. M. Baldridge, his cattle, hogs, hay and corn for the lump sum of $ 4,000, the said brother paying therefor $ 2,000 in cash and agreeing to surrender his two notes for $ 2,000. With the $ 2,000 so received from his brother, the defendant paid overdrafts held by the First National Bank and the Sullivan County Bank aggregating $ 1,000 and also paid on his $ 1,250 note to the Sullivan County Bank, on which plaintiff was security, $ 524; and on his $ 900 note to the last named bank, on which Ed Calhoun was surety, $ 376.
The defendant's creditors other than said Stuart and L. M. Baldridge on learning of the preference received by the latter expressed to them their dissatisfaction thereat, and thereupon such latter signified a willingness to have the status quo restored to the end that all of the defendant's creditors might pari passu share in the security so given. Accordingly, after a number of parleys between the creditors and defendant, a meeting resulted at which it was agreed that if the defendant would secure a release of said mortgage so given to the said Stuart and a rescission of the sale of said property to L. M. Baldridge, and a release of any preference they might have received by reason of said mortgage and sale that they--the defendant's creditors--would release and have cancelled the payments on said notes on which plaintiff and Calhoun were sureties, and that they would accept the said personal property and defendant's interest in said farm land in full satisfaction and discharge of all debts due from defendant to each of them or for which they or any of them were liable as sureties. In pursuance of this agreement the defendant secured the release of said mortgage and the rescission of said sale of personal property and of any preference the said Stuart and L. M. Baldridge had, or claimed, and turned over to said creditors the said personal property and executed a further mortgage at their request to said Stuart, whereby he conveyed his homestead rights and equities in said farm, which personal and real property said creditors accepted and received in consideration of which the said creditors released and discharged the defendant from all of his said indebtedness.
It appears that after the transfer by the defendant of the said real and personal property it was agreed by the creditors among themselves that two of said creditors, L. M. Baldridge and A. B. Watson, should take the personal property in payment of their claims and that the said Stuart should take the real estate security, and out of it pay the other creditors sixty cents on the dollar. This was accordingly done, the said Stuart paying the plaintiff sixty per cent on the amount due on the Sullivan County Bank note of defendant on which he was surety, and also a like per cent to Ed Calhoun on the note of defendant to said bank on which the latter was surety and of which claim plaintiff afterwards became the owner by assignment. The plaintiff at the time of this payment to him executed the following instrument, to-wit:
A similar instrument was at the same time executed by Ed Calhoun, plaintiff's assignor.
This suit is by plaintiff against defendant to recover the amount which he was compelled to pay as surety on said note of the defendant to the Sullivan County Bank and also to recover the amount said Calhoun, plaintiff's assignor, had been compelled to pay as surety on the note of defendant to the said bank. The defendant pleaded the said agreement and release in bar of the plaintiff's action. The plaintiff in his replication admitted the agreement and the execution of the said release, but alleged that, ...
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