Nevins v. Coleman

• Decision Date: 28 January 1918
• Docket Number: No. 12217.,12217.
• Citation: 200 S.W. 445,198 Mo. App. 252
• Parties: NEVINS v. COLEMAN et al.
• Court: Missouri Court of Appeals

200 S.W. 445

198 Mo. App. 252

NEVINS v. COLEMAN et al.

No. 12217.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

Action by Samuel W. Nevins against John W. Coleman and D. O. Bayless. From judgment for defendants, plaintiff appeals. Judgment reversed and cause remanded, with directions to enter up judgment for plaintiff on the first count of the petition, and to award new trial of the case on the second.

Finley & Sapp, of Columbia, for appellant. McBaine & Clark, of Columbia, for respondents.

TRIMBLE, J.

Plaintiff bought a house and lot of the defendant Coleman, paying a large part of the purchase price by transferring to Coleman, without recourse, a note and deed of trust for $2,018, due November 15, 1913, given by other parties on property already incumbered. As collateral security for the payment of same note he gave Coleman his own note for $500, due December 15, 1913, secured by a second deed of trust upon a small piece of property. On November 15, 1913, Coleman assigned both notes to one Gordon, who, in the year 1916, foreclosed the $2,018 deed of trust, and, not obtaining anything like the full amount of the debt also foreclosed said $500 deed of trust, but obtained only a small sum on it, and thereupon, under execution on his deficiency judgment, sold other property of defendant.

The real object and ultimate purpose of this action is to recover damages of the defendant Coleman for the alleged wrongful negotiation of said $500 note to Gordon, it being plaintiff's contention that said collateral note and deed of trust were given on condition that they were to be void if the $2,018 deed of trust was not foreclosed by December 15, 1913, but that said provision was, by mistake, left out of said collateral note and deed of trust, and that, by assigning same to Gordon without notifying him of said condition, plaintiff was greatly damaged.

The petition is in two counts. The first seeks, in equity, to reform the collateral note and deed of trust on the ground of mistake in omitting therefrom the alleged agreement that they should be void if the other deed of trust was not foreclosed by the date last above mentioned. The second count is for damages accruing to plaintiff by reason of Coleman's assignment to Gordon without telling him of the condition therein, which, by reason of the mistake then existing in said note and deed of trust, did not appear on their face and was not otherwise disclosed to Gordon. Defendant Bayless was made a party because he was the trustee in said deed of trust.

Coleman's answer to the first count after a general denial was a plea of res adjudicata; that Gordon had theretofore brought a suit in the circuit court against plaintiff to foreclose said collateral deed of trust in which the question of reformation was litigated, and in which it was decreed that the note and deed of trust should not be reformed, since they were, according to the intention of the parties, unrestricted collateral security for the $2,018 note; and that the said collateral note and deed of trust, as drawn, truly and correctly set forth the agreement of the parties. The answer to the second count was a general denial.

Plaintiff's reply set up that defendant Coleman was not a party plaintiff to the suit of Gordon v. Nevins, "but on the contrary defended the same and employed attorneys for the defense of the same in behalf of this plaintiff; that said John W. Coleman was not adversary to this plaintiff under the issues in said case;" that the decision was for Gordon because he was a purchaser without notice.

The case was submitted to the court, the record on this feature reading that "this cause being called for trial, and this being an action in equity, all and singular the matters and issues herein are submitted to the court." On the first count, the court found that said collateral deed of trust did not state the true agreement as entered into between the parties, and that the same was written under a mutual mistake of fact as alleged in the first count, but that the issues therein raised had been adjudicated in the former suit of Gordon v. Nevins tried at the April, 1914, term of said court, and for that reason rendered judgment for defendant on said count. The court found that the same issues were involved in the second count, and that the basis of said second count was the restrictive agreement sought to be established in the first, and thereupon rendered judgment for the defendant on the second count for the same reason.

Although it is not a contested matter in the case, yet it may be well to observe that while reformation of a deed of trust on real estate is sought in the first count, yet it clearly appears on the face of the entire proceeding that the title to real estate cannot be affected and is not involved, since it has already passed, by foreclosure, to other parties, and cannot be disturbed by any judgment herein. In fact, no attempt is made to affect the title, the reformation sought being only as between plaintiff and Coleman to establish the agreement in order that the former may sue to recover damages for the latter's alleged wrongful assignment without being confronted with a written agreement directly contrary to plaintiff's claim. There is therefore nothing in the case to affect our jurisdiction. Schultz v. Tatum, 96 Mo. 185, 9 S. W. 633; Hardwicke v. Barnes, 253 Mo. 6, 161 S. W. 744; Heman v. Wade, 141 Mo. 598, 601, 43 S. W. 162; Dubowsky v. Binggeli, 258 Mo. 197, 167 S. W. 999; Vandergrif v. Brock, 158 Mo. 681, 59 S. W. 979.

Did the issue involved in the first count become res adjudicata, as between Nevins and Coleman, by reason of the judgment in the suit of Gordon v. Nevins? Upon being sued by Gordon, Nevins notified Coleman that should he (Nevins) be defeated in that suit he would hold Coleman liable, and thereupon Coleman paid half of the lawyer expense in defending said suit, and assisted Nevins in his defense by testifying in the case, but he was not a party to the record. Nevins defended in that suit on the ground that the agreement was that the collateral note and deed of trust were to be void if the other deed of trust was not foreclosed by December 15, 1913, and that Gordon was fully informed of this fact when he took the notes as assignee. And Coleman, testifying as a witness for Nevins, swore that such was the agreement between him and Nevins at the time the collateral note was given, and he further testified that he told Gordon of such fact when he assigned the notes to Gordon. The judgment, however, in Gordon v. Nevins was in favor of Gordon. It recites the giving of said $500 note and deed of trust as collateral security for the amount represented...