Newell v. Keeler

• Decision Date: 16 January 1883
• Parties: B. H. NEWELL, Respondent, v. C. H. KEELER, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 189

B. H. NEWELL, Respondent,

v.C. H. KEELER, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 16, 1883.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Affirmed.

ISAAC T. WISE, for the appellant.

J. P. COLBY, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This was an action brought before a justice of the peace, for a balance of $250 due on an account. The cause was appealed to the circuit court, where a trial was had de novo, without the intervention of a jury, and a judgment was rendered in favor of the plaintiff, in the sum of $350.16. No objection was taken in the motion for a new trial, to the amount of the judgment, and that is not in controversy. The only testimony in the case is that of the plaintiff, and the only substantial question to be decided is, whether his testimony warranted the judgment which was rendered. His testimony was, in effect, that the defendant called upon him and solicited a loan of $600, promising to repay it in four or five days. The plaintiff loaned the money to him, upon his promise to repay it at the end of that time. At the same time, or, at least, on the same day,--and there is no doubt that it was a part of the same transaction,--the defendant delivered to the plaintiff a bill of sale of a horse, buggy, harnesses, whip, and lap-robes, which were in a livery stable in the city. This bill of sale was intended merely as a security for the money loaned. It was in the following language:--

“ST. LOUIS, Sept. 15, 1877.

Received of B. H. Newell, the sum of six hundred dollars, the same being in full of a certain white mare named Kate, including side-bar buggy, single harness, also double harness, including whip, lap-robes, etc., now at Tower Grove stables.

CHAUNCEY H. KEELER.”

The defendant failed to return the money, except $25, though he repeatedly promised to return it, and repeatedly broke his promises. The plaintiff took possession of the property thus conveyed to him, caused it to be sold for what would seem to be fair prices, gave the defendant credit for the money thus realized, charged him with the amount paid for the keeping of the horse, and for repairing the buggy, voluntarily remitted $53 of the balance, and brought this action for the remainder of the account.

We need not go into the case further. The ground on which we are asked to reverse the judgment is, that parol evidence was incompetent to vary the terms of the instrument of writing above set out, and that the...