National Refining Co. v. Zuckerman

• Decision Date: 14 November 1944
• Docket Number: No. 26672.,26672.
• Citation: 183 S.W.2d 390
• Parties: NATIONAL REFINING CO. v. ZUCKERMAN.
• Court: Missouri Court of Appeals

183 S.W.2d 390

NATIONAL REFINING CO. v. ZUCKERMAN.

No. 26672.

St. Louis Court of Appeals. Missouri.

November 14, 1944.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Action by the National Refining Company against Charlotte Zuckerman for the balance due on a note after crediting defendant with the net amount realized from a sale on foreclosure of a trust deed securing the note. From a judgment for plaintiff on the pleadings, defendant appeals.

Affirmed.

Taylor, Mayer, Shifrin & Willer, of St. Louis, for appellant.

Kenneth Teasdale, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an appeal by the defendant from a judgment entered upon an order sustaining the plaintiff's motion for judgment on the pleadings.

The action was one by plaintiff, National Refining Company, to recover upon a promissory note executed by defendant, Charlotte Zuckerman, in favor of plaintiff as payee, and secured by a deed of trust on certain real estate located in the City of St. Louis. There was a foreclosure under a power of sale contained in the deed of trust; and the amount sought to be recovered from defendant was the balance of $2,938.70 and interest which was allegedly due on the note after defendant had been given credit for the net amount realized from the foreclosure sale.

In its petition, plaintiff alleged the execution and delivery of the note; that it was secured by a deed of trust, "which deed of trust was a purchase money mortgage on said real estate which plaintiff conveyed to defendant pursuant to an earnest money contract in her name"; that defendant continued to hold title to the property until the foreclosure; and that upon defendant's failure to pay the note at its maturity, plaintiff had foreclosed under the deed of trust.

The sole question for our determination is whether the answer stated a defense to plaintiff's cause of action for the balance due upon the note. If it did, plaintiff was obviously not entitled to judgment on the pleadings, but if it did not, then there was no issue to be tried, and plaintiff's motion was properly sustained.

Herewith is the answer in its entirety:

"Comes now defendant and, by leave of court first had and obtained, files this her amended answer to the petition of plaintiff filed herein and for said answer denies each and every allegation in said petition contained.

"Further answering, defendant states that she never received any consideration for the notes referred to in plaintiff's petition and that she signed said notes merely as a straw party with the knowledge and consent of plaintiff, and that plaintiff, in accepting said notes, knew that defendant was signing as a straw party and was insolvent and did not intend to look to or hold this defendant liable on said notes; that the plaintiff accepted said notes with the intention of looking to the security solely for payment.

"Further answering, defendant denies that there was a sale of the property set out in plaintiff's petition, as provided by law, and states that said property was purchased by plaintiff and that no other bidders bid at said sale. That the purchase by plaintiff of the property in question under the circumstances hereinabove set out constitutes payment in full of any and all indebtedness of defendant to plaintiff, and particularly of the note mentioned in plaintiff's petition.

"Wherefore, having fully answered, defendant prays to be hence dismissed with her costs."

It will be observed that there was no issue raised regarding the execution of the note, but that instead the attempted defense was put upon three grounds, — the first, a lack of consideration; the second, that defendant, with plaintiff's knowledge and consent, had signed as straw party for some one else, and that plaintiff, in accepting the note, had not intended to hold defendant personally liable thereon, but had intended to look solely to the security for payment; and the third, a denial that there had been a lawful sale of the property at foreclosure, coupled with an averment that plaintiff's purchase of the property under the circumstances had constituted payment in full of any indebtedness of defendant to plaintiff under the note in question.

As a matter of fact, it might be more accurate to say that the answer set up only two...