Nevius v. Moore

Decision Date08 June 1909
Citation221 Mo. 330,120 S.W. 43
PartiesNEVIUS v. MOORE.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Andrew F. Evans, Judge.

Action by Hugh C. Nevius against George T. Moore. From a judgment for defendant, plaintiff appeals. Affirmed.

This appeal is from a judgment of the Jackson county circuit court in favor of defendant.

On June 26, 1902, the appellant, Nevius, filed his petition against the respondent, Moore, in the circuit court of Jackson county, Mo. Summons was issued and served on Moore the same day. An amended petition was filed on the 27th day of January, 1903. The amended petition consisted of seven counts; the two first being equitable and the last five being actions at law on promissory notes. The first count was based on four promissory notes executed by Eliza J. McClellan to George T. Moore, the respondent, on August 9, 1887, payable three years after date, secured by four separate deeds of trust on lots 6, 7, 8, and 9 in block 1 in West Ridgeway, a subdivision of land in Jackson county, Mo., the assignment of said notes to appellant, Nevius, by Moore, before their maturity, their reassignment to Moore as a pledge for loans after maturity, the foreclosure of said deeds of trust by Moore while holding said notes as a pledge, and a general charge of fraud and misrepresentation by Moore for the purpose of relieving himself of his liability as indorser. It is alleged that at the maturity of said notes they were presented to the maker, demand of payment made, and notice of refusal of payment given to Moore as indorser. It was alleged in the original petition that interest was paid on said notes up to and including February 9, 1892, and in the amended petition that it was paid up to and including August 9, 1892; that in 1898 Moore admitted his liability on said notes as indorser, and again promised to pay them; that Moore was agent of Nevius, and as such took advantage of him and deceived him; that he borrowed money from Moore on the security of said notes as collateral temporarily until said deeds of trust could be foreclosed. Fraud and misrepresentation is charged against Moore in making the loan to Nevius and pledging the McClellan notes. It is charged that Moore represented that he was insolvent, and that he would have to get the money from some other person when as a matter of fact the money furnished was Moore's. It is charged that Moore converted the McClellan notes to his own use by having the deeds of trust foreclosed and title taken in his name, and that he was guilty of a fraud in not giving Nevius notice of the time and place of sale, and the fact that he had bought the lots at the sale. Appellant prays an accounting; that, after giving Moore credit for the sums loaned him, he have judgment for the balance; that the title to the lots be decreed in appellant; and that Moore be required to yield up the McClellan notes. The second count of the amended petition is based on a note dated January 15, 1889, given by Joseph J. Baughman to respondent, George T. Moore, payable three years after date, secured by a deed of trust on lots 9, 10, and 11, block 52, in Centropolis, a subdivision of land in Jackson county, Mo., which note was assigned and transferred to Nevius before its maturity. The allegations of this count are in all things similar to those of the first count, except that this note was not pledged to secure a loan; alleges that interest was paid on said note up to and including July 15, 1892, and alleged in original petition to have been paid up to January 15, 1892; alleges that Moore had the deed of trust foreclosed and purchased the property in his own name. Prayer similar to that contained in the first count. The third, fourth, fifth sixth, and seventh counts are...

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