Moore v. McHaney

• Decision Date: 02 July 1915
• Docket Number: No. 13924.,13924.
• Parties: MOORE v. McHANEY.
• Court: Missouri Court of Appeals

178 S.W. 258

191 Mo. App. 686

MOORE v. McHANEY.

No. 13924.

St. Louis Court of Appeals. Missouri.

July 2, 1915.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by C. F. Moore against J. P. MeHaney. Judgment for plaintiff in the circuit court on appeal from a justice of the peace, and defendant appeals: Affirmed on condition that plaintiff remit a portion of the judgment; otherwise to be reversed and remanded.

John T. McKay, of Kennett, for appellant. W. It. Hall, of Kennett, for respondent.

ALLEN, J.

This is an action begun before a justice of the peace to recover from defendant the amount remaining unpaid on a certain note executed by one Hodge to plaintiff. It is averred that defendant, for a valuable consideration, "and for the purpose of extending the time of payment of said note, "contracted to pay the unpaid balance due upon the note, and paid $50 on account thereof, leaving a balance of $129.30 due and unpaid thereupon, and judgment is prayed for said sum, with costs. Plaintiff prevailed before the justice of the peace, and upon defendant's appeal to the circuit court and a trial there de novo before the court and a jury there was a verdict and judgment for plaintiff, and the case is here on defendant's appeal.

One J. B. Hodge was indebted to plaintiff upon a promissory note theretofore executed by him and secured by a chattel mortgage upon a team of mules which he had purchased from plaintiff. Hodge went to work for the defendant, McHaney, apparently early in 1911, using this team of mules in clearing land, building fences, and doing other work upon defendant's property. The note to plaintiff was then overdue, and Hodge testified that when defendant asked him to come upon defendant's place to do this work he told defendant that he would do so if defendant would "go on" this note; that defendant did not agree to do so, and later, about April, 1911, the witness told defendant that plaintiff was demanding the mules, and that he (Hodge) had written plaintiff to come and get them; that nothing further was said until a little later, when defendant told the witness that he had seen plaintiff and had paid the latter $50 on the note and "guaranteed the balance." The $50 thus paid by defendant was money which defendant then owed Hodge.

There is no dispute as to the fact that defendant met plaintiff in "Shelton's store," evidently in April, 1911, paid plaintiff the $50 on the note, and made some further agreement regarding the payment of the balance then remaining due thereon. There is some conflict in the testimony as to just what was the oral agreement respecting the payment of the balance on the note. Plaintiff testified:

"We agreed in Shelton's store that if I would take $50 and leave the team alone that he would pay it [the note], and I taken him for it. Q. He agreed to pay $50 on the note? A. Yes, sir. Q. And did at that time? A. Yes, sir. Q. And agreed to pay the rest? A. Yes, sir. Q. Did you look to Hodge after that for the money? A. No, sir; I never did ask Hodge for a nickel. * * * Q. And that was the contract between you and McHaney that Hodge was to keep the mules, and that he [McHaney] was to pay for them? A. Yes, sir; that was the understanding; that he was to pay me this $50, and me not bother the mules."

On cross-examination plaintiff said that defendant agreed "that he would pay the note or deliver the mules; to pay the money or return the mules." He denied, however, that defendant had only promised to see that Hodge paid the debt, saying: "He promised to pay me."

Two witnesses present at the time of the oral agreement in question both testified that McHaney agreed to pay the $50 and to pay the balance on the note some time "in the fall," and that in consideration thereof plaintiff agreed not to take possession of the mules "until fall."

Defendant's testimony is that plaintiff, at the time in question, asked him to sign the note, and that he refused to do so; that he paid plaintiff the $50, and said:

"I will guarantee that you will not be put to any trouble; if old man Hodge doesn't make a good crop I will guarantee that you will have your money or get your mules."

It appears that some time in the latter part of this same year one of the mules died. Thereafter Hodge took the other mule to plaintiff, who told him to take it to defendant, who had agreed to be responsible for the debt. Hodge did this, but defendant denied any responsibility in the matter, and directed Hodge to deliver the mule to plaintiff. Thereupon the mule was turned over to plaintiff at an agreed valuation which was credited upon the note.

The jury, upon instructions to be hereafter noticed,...