Missouri State Life Ins. Co. v. Early
| Decision Date | 11 February 1929 |
| Citation | 13 S.W.2d 1097,222 Mo.App. 1118 |
| Parties | MISSOURI STATE LIFE INSURANCE COMPANY, APPELLANT, v. C. H. EARLY, RESPONDENT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Boone County.--Hon. D. H. Harris Judge.
Judgment reversed and remanded.
Allen May, Warren Rogers and Ramond J. Lahey (Jourdan & English of counsel) for appellant.
Rodgers & Buffington (no brief) for respondent.
Trimble, P. J., absent.
--This is an action to recover the sum of $ 784 unpaid interest for one year on a promissory note secured by deed of trust.
The facts of record are that on March 1, 1920, Claud Asbury and Gertrude Asbury borrowed from plaintiff the sum of $ 11,200, giving their promissory note therefor, secured by a deed of trust on one hundred and sixty acres of land in Audrain county, Missouri, bearing interest at seven per cent per annum, payable annually on March 1st each year. The deed of trust provided that in default in the payment of any interest installment when due, the same might be foreclosed and the property sold under the terms thereof. On March 2, 1920, Claud Asbury and wife conveyed said property to Fred Shelledy who assumed payment of the note thus secured by said deed of trust.
The answer was a general denial. Upon the issues thus made, and by agreement, the cause was tried to the court without a jury. At the close of plaintiff's evidence, defendant offered a demurrer asking the court to declare that under the law and the evidence, the plaintiff could not recover. The court took the matter under advisement until the next regular term at which time he sustained the demurrer. Plaintiff, by leave of court, took a nonsuit with leave to move to set the same aside, and at the January term, 1927, of said court, filed motion to set aside the nonsuit and grant a new trial for the reasons (1) that the court erred in sustaining the demurrer; (2) in giving the instruction, or declaration directing that under the pleadings and evidence the finding should be for the defendant, and (3) under the pleadings and evidence in this case there was raised an issue of fact which should have been submitted to the trier of fact for decision. The motion was overruled and plaintiff has appealed.
The cause is submitted to this court for review upon the record and brief of plaintiff. The defendant furnishes no brief and we are unable to get defendant's position in respect to matters in issue except from inferences to be drawn from the objections interposed and statements of counsel in support thereof during the progress of the trial. From these it is gathered that defendant's position is that he is not liable because the alleged agreement to pay the installment of interest upon which this action is based was not in writing, and therefore the claim is barred by the Statute of Frauds. Plaintiff takes the opposite view.
Plaintiff's evidence in support of the petition consists of the testimony of one W. H. Stubblefield, an agent of plaintiff in charge of some of its business involving "collection of interest and notes and handling real estate." This witness testified that on April 9, 1925, he called upon defendant at his office in Centralia, Mo., relative to the installment of interest due on March 1, 1925, then in default. When asked what the conversation was an objection was interposed by defendant's counsel, as follows:
"We object to that, and we further object to any oral conversation or understanding or statements made between him and Early because it shows upon the face of the petition in this suit that this is a claimed agreement to answer for the debt, default or miscarriage of another, and, under the Statute of Frauds it must be in writing."
The court overruled the objection. The witness then stated:
"I had a conversation with Mr. Early about the payment of the interest, and he told me he wasn't able to pay it, . . . but if we would extend the time to the first of July or first of August that he would pay one year's interest, and in that conversation I told Mr. Early if that was done it would be necessary for him to pay the taxes and he stated that he had already paid them, and I told him to send his tax receipt in and make a written request for extension to July 1st, and he told me he would do that and he did do it."
The witness further testified: "Well, it was stated by Mr. Early that he would pay that on July 1st if we would not foreclose, and I told him that I would recommend that to our company, and I did."
Further the witness stated that Mr. Early did send in his tax receipt showing the 1924 taxes paid; that after witness returned to the home office in St. Louis, the company wrote Mr. Early a letter in reference to an extension of time for the payment of interest. A carbon copy of said letter was identified by witness and introduced in evidence. It is as follows:
It will be noted this letter is dated April 22, 1925, and after the alleged conversation on April 9, 1925. On May 7, 1925, defendant wrote plaintiff as follows:
In reply plaintiff wrote as follows:
On October 30, 1925, plaintiff's attorney wrote defendant relative to the matter and stated:
To this letter defendant replied as follows:
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