Morehead v. Cummins

• Citation: 207 Mo. App. 64,230 S.W. 656
• Decision Date: 04 April 1921
• Docket Number: No. 13507.,13507.
• Parties: MOREHEAD v. CUMMINS et al.
• Court: Court of Appeal of Missouri (US)

230 S.W. 656

207 Mo. App. 64

MOREHEAD v. CUMMINS et al.

No. 13507.

Kansas City Court of Appeals. Missouri.

April 4, 1921.

Rehearing Denied May 2, 1921.

Appeal from Circuit Court, Adair County; A. Cooley, Judge.

Action by William Morehead against Thomas S. Cummins and others. Judgment for defendants, and plaintiff appeals. Judgment reversed, and cause remanded, with direction to enter up judgment for plaintiff.

J. W. Clapp, of Milan, C. E. Murrell, of Kirksville, and D. M. Wilson, of Milan, for appellant.

Calfee & Painter, of Milan, and Campbell & Ellison and J. M. Wattenbarger, all of Kirksville, for respondents,

TRIMBLE, P. J.

In this case the indorsee of a promissory note brought suit thereon against the makers. Verdict and judgment went for defendants, and plaintiff has appealed.

The note was on an ordinary printed blank form, the blanks being filled in with a typewriter, and was signed by defendants, and, as so signed, reads as follows:

                "$1,183.          Milan, Mo., March 11, 1915
                

"March 1, 1918, after date, we promise to pay to the order of Daniel O. Sayre, eleven hundred eighty-three dollars, for value received, with interest at the rate of six per cent. per annum from March 1, 1915, and if the interest be not paid annually, to become as principal and bear the same rate of interest.

"This note is negotiable and payable without defalcation or discount, and without any relief or benefit whatever from stay, valuation, appraisement, or homestead exemption laws.

                                             "Thomas S. Cummins
                                             "Mrs. W. B. Payne."
                

Below the signatures, and on the margin of the note, these words appear, written in lead pencil:

"Given to secure the difference between $15,000 and $13,820."

On the back of the note are the following indorsements:

"D. O. Sayre. Paid $72.11, being interest to March 1, 1913. December 9, 1916, paid $130.40 by T. S. Cummins. [24¢ Documentary Internal Revenue Stamps.]"

Defendants, in their joint answer, said they signed the note, Cummins as principal and Mrs. Payne as surety; and they then set up that the note originated, in an exchange of lands between Cummins and Sayre, the payee in the note, in the following manner : That on the Cummins farm were deeds of trust aggregating $15,000, of which $1,000 was given by Cummins to Mrs. Payne, his codefendant, to indemnify her for having signed, as a surety for him, his note of $1,000 to America and Lindsay Pile; that Sayre's farm had incumbrances on it amounting to $2,800; that the parties trading each agreed to assume the incumbrance on the farm he was to get, except that Sayre assumed only $14,000 of the incumbrance on the Cummins farm, but the $1,000 indemnity incumbrance given to Mrs. Payne was still on said farm, and it was agreed that, to protect Sayre from this $1,000 incumbrance, Cummins and Mrs. Payne, who was Cummins' sister, would execute the note sued on herein to Sayre to indemnify him against the $1,000 Payne indemnity note; and that included in the note sued on, was $153 additional, which Cummins owed Sayre on another matter; that as a part of said agreement it was understood and agreed that the words, "Given to secure the difference between $15,000 and $13,820," should be written thereon, and were written upon said note at the time of its execution; that said note had no other or further consideration and afterwards Cummins paid the $153 he owed, together with interest thereon, and further paid an additional $30, with interest thereon, and thereafter paid off the Pile note on which Mrs. Payne was his surety, thereby relieving the land Sayre got of the $1,000 indemnity Payne incumbrance, so that the note sued on herein, being given to protect Sayre from said indemnity Payne incumbrance of $1,000, was paid in so far as it covered the $153 debt owed by Cummins to Sayre, and was no longer of vital force or efficacy so far as concerned the indemnity against the Payne surety encumbrance.

To this, plaintiff filed a reply setting up that the words, "Given to secure the difference between $15,000 and $13,820," appear on the note written in lead pencil and below the signatures, while the rest of the blanks in the note were in typewriting. The reply then denied every other allegation in the answer. The reply then pleaded res adjudicata as to the claim set up in the answer, and stated that on March 28, 1917, defendant Cummins, as plaintiff, brought a suit in the circuit court of Sullivan county against Sayre, alleging that he and Sayre had traded farms; that on the Cummins farm, traded to Sayre, were incumbrances aggregating $15,000, of which Sayre agreed to assume $13,820, and Cummins was to pay the difference between $15,000 and $13,820, and, to protect Sayre and the land traded him, Cummins executed and delivered to Sayre the $1,183 note (which is the same note sued on in this suit), to indemnify Sayre against Cummins' failure to perform said agreement to pay off the aforesaid difference between the incumbrance of $15,000 on the land Sayre got and the $13,820 which he assumed; that afterwards Cummins paid on said note the sum of $183 with interest, and obtained the release and discharge of a $1,000 deed of trust on the land Sayre got, wherefore the plaintiff therein (Cummins) prayed the court to order and decree that Sayre return and deliver the $1,183 note to him, and if for any reason Sayre could not turn said note over, then the plaintiff Cummins prayed for judgment against Sayre in the sum of $1,183 and for costs.

Plaintiff's reply, in the case now before us, further set up that in the aforesaid Cummins suit against Sayre, the latter filed an answer, denying generally the allegations of Cummins' petition, and then alleged that he (Sayre) traded 80 acres at $75 per acre for Cummins' 202 acres at $80 per acre; that he (Sayre) assumed $14,000 of the deeds of trust on the land he was getting from Cummins, and the latter assumed the $2,803 incumbrance on the land obtained from Sayre, and the latter deeded his equity in his 80 to Cummins at $3,200; that in addition thereto Cummins owed him (Sayre) $153 for stock purchased by Cummins at Sayre's sale; that Sayre owed Cummins $16,160 for his 202 acres, and Cummins owed Sayre the $14,000 incumbrance (assumed by Sayre), the $3,200 equity in the Sayre land, and the $153 for stock bought, making the amount Cummins owed Sayre aggregate $17,353, which, after deducting the $16,160 owed him, left a difference of $1,193 owed by Cummins to Sayre, and that the note in controversy (which is the same note sued on in this case), was given to cover that difference, but by an oversight or mistake the note was drawn for $1,183, or $10 less than it should have been.

Plaintiff's replication in the case at bar further set up that in Cummins' replication " as plaintiff in the other suit he admitted he was to take Sayre's land at $75 per acre; that he owed the $153, and that he assumed the $2,800 incumbrance on the land he got from Sayre, but denied everything else.

Plaintiff, in his replication in the case at bar, then set up that a trial was had on the issues thus raised in the Sullivan circuit court between Cummins and Sayre, at which the defendant Mrs. Payne, appeared and testified as a witness, and, during its pendency, consulted and advised with Cummins, the plaintiff therein, and his attorneys in regard thereto; that on the 5th day of September, 1917, the court rendered judgment for the defendant Sayre in that suit, and it was not appealed, Plaintiff in the present case, therefore, pleaded the judgment in the other case as res adjudicata of the issues set up and attempted to be raised in defendants' answer in this case. Plaintiff further pleaded that he bought the note sued on, in good faith, without notice, and before maturity, paying full value therefor.

There is no question but that plaintiff bought, and paid full value for, the note in controversy on September 7, 1915, long before the maturity of the note; and that he had no notice of any equities which defendants now claim exist in their favor against the same, unless the pencil notation on the note can be said to impart such notice. The evidence is that when Sayre sold plaintiff the note he told plaintiff he and Cummins had traded farms, and the note was given for the difference between them in the trade. Plaintiff asked who else was on the note, and, when told Mrs. Payne was, he agreed to buy it. Nothing was told him which would in any way charge him with notice of any equities between the parties to the note, and there is no evidence of any collusion or fraud on the part of plaintiff with respect to the...