Nutz v. Shepherd

Decision Date22 January 1973
Docket NumberNo. 9212,9212
Citation490 S.W.2d 366
PartiesLouise NUTZ, Plaintiff-Respondent, v. Kenneth SHEPHERD, Defendant-Appellant, and Clinton S. and S. Construction Company, Inc., a Missouri corporation, and Philip H. Ashmore, an individual, d/b/a Midwestern Properties Company, Defendants.
CourtMissouri Court of Appeals

Ike Skelton, Lexington, Krings, Stewart, Whipple, Mauer & Eisler, Kansas City, for defendant-appellant.

Richard M. Webster, Myers, Webster, Perry & Elliston, Webb City, for plaintiff-respondent.

BILLINGS, Judge.

In this jury-waived suit plaintiff had judgment for $16,424.00 against defendant arising out of defendant's assumption of a mortgage debt as a grantee in a deed of conveyance of real estate. For the reasons hereinafter appearing we affirm the judgment.

Default was made on the mortgage debt and at the foreclosure sale plaintiff bid in the property for $1,000.00 and brought suit against defendant and others. Plaintiff dismissed her claim against Philip Ashmore and the trial court sustained motions to dismiss as to Clinton S. and S. Construction Company, Inc., and as to other counts against defendant Shepherd. Defendant Shepherd has appealed from the rendition of the judgment against him for the deficiency under the assumed note.

The determinative issue is whether defendant Shepherd personally assumed and agreed to pay the indebtedness owing plaintiff under a first deed of trust on the property, or, the assumption was by a corporation of which defendant was president. The resolution of this issue turns on whether changes in the deed containing the assumption clause were made prior to the transfer of the property and were authorized by the parties involved.

Since in this appeal the sufficiency of the evidence to support the lower court's judgment is challenged we detail the pivotal evidence heard by the trial court.

In early 1969 the property was sold by Mr. and Mrs. Nutz (he was deceased at time of trial) to Roland and Maxine Moore. The Moores paid $600.00 at the time of the purchase and gave their note for $14,400.00, the note being secured by a first deed of trust on the property. On October 1, 1969, the Moores, through the efforts of Midwestern Properties Company, entered into a sale agreement with Clinton S. and S. Construction Company, Inc., of which defendant was president. The agreement provided for a total sale price of $18,400.00, payable as follows: $2,200.00 to be paid the sellers; $1,800.00 commission to be paid the real estate agency; and, the assumption of the $14,400.00 indebtedness against the property by the purchaser. To secure payment of the real estate commission the purchaser agreed to execute a second deed of trust on the property. For the purchaser the agreement was signed by the defendant in his capacity as president of the corporation.

The Moores desired to be released from their liability on the Nutz note and a 'financial statement' of the corporation representing its equities in various other properties in the total sum of $402,700.00 was shown the Moores and Mr. and Mrs. Nutz. On October 6, 1969, a letter prepared by the real estate agent was signed by plaintiff and her husband releasing the Moores of all liability and accepting the corporation as the new owner and debtor.

The Moore sale was closed on October 6, 1969, by Philip Ashmore of Midwestern. This agency had also handled the earlier Nutz to Moore transaction. The warranty deed, the note in payment of the real estate commission, and the granting and purpose clauses of the second deed of trust had been originally drafted so as to describe 'Clinton S. and S. Construction Company--Kenneth Shepherd--President' as the grantee, maker and grantor respectively. However, Ashmore testified that in order to protect Midwestern's commission and for 'other reasons' he felt the transactions should be with the defendant individually and at his direction the corporate name and term 'president' were x-ed over by typewriting. He said this was done before the transaction was closed and the documents were signed; that he explained the change to the Moores and to the defendant and approval was given to the change. The documents were thereafter executed by the parties, acknowledgements taken, and the deed and second deed of trust were subsequently recorded on October 30, 1969.

The Moores, testifying by deposition, 'thought' they were transferring the property to a corporation, 'understood' the deed was to the corporation, but could not remember one way or another whether the x-ing had been made on their deed at the time they signed it. Neither of them ever met or talked with the defendant and there was no discussion about deeding the property to a person or an officer of the corporation in his name alone. They received a note for $2,200.00 signed by the defendant as president of the corporation from one of the real estate agents and it had never been paid.

Defendant denied any conversations at the closing concerning changing the transaction from a corporate purchase to his individual purchase and it was his intention and 'understanding' that the corporation take title and assume the mortgage debt. He did not have any recollection or any knowledge of 'how these x's appeared on that warranty deed'. He signed 'these papers' as president of the corporation. He never agreed to take title individually and assume the existing indebtedness. He first learned the deed was to him individually and that he had signed the second deed of trust as an individual from his lawyer after plaintiff brought suit against him.

In this court-tried case the scope of our review is governed by Rule 73.01(d), V.A.M.R. And while it is our duty under this rule to review the case upon both the law and evidence the judgment is not to be set aside unless clearly erroneous, giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses. Further, that where there is a direct conflict in the testimony deference is to be given the trial court's conclusions. Kester v. Jeter, Mo.App., 481 S.W.2d 510; Del Monte Corp. v. Stark and Son Wholesale, Inc., Mo.App., 474 S.W.2d 854; Dill v. Poindexter Tile Co., Mo.App., 451 S.W.2d 365; Schmitt v. Pierce, Mo., 344 S.W.2d 120.

No findings of fact or conclusions of law were requested by the parties, nor did the trial court indicate the grounds for his decision. We must therefore assume all fact issues were found in accordance with the result reached. Rule 73.01(b), V.A.M.R.; Atherton v. Atherton, Mo.App., 480 S.W.2d 513. Also, as was said in Dill v. Poindexter Tile Co., supra, 451 S.W. 2 l.c. 371: '. . . (I) n court-tried actions we are obliged to accept as true the evidence and all permissible inferences therefrom favorable to the prevailing party and disregard such testimony as is contrary thereto (cases), and not to set aside the judgment unless it is clearly erroneous.'

Defendant's first point in his brief is 'The Judgment Against The Defendant Kenneth Shepherd In Favor of Plaintiff Is Against The Weight of The Evidence'. Such assignment violates Rule 84.04(a) and (d) V.A.M.R. and presents nothing for review on appeal. Shell-Con, Inc. v. Architectural Concrete, Inc., Mo.App., 486 S.W.2d 662; Stanziale v. Musick, Mo., 370 S.W.2d 261. An assignment that the verdict or judgment is against the weight of the evidence implies that there was some evidence to support it. Robbins v. Robbins, Mo., 328 S.W.2d 552. It does not purport to raise the issue of the sufficiency of the evidence to support the judgment of the trial court. Shell-Con, Inc. v. Architectural Concrete, Inc., supra; Bowers v. Spinaio, Mo.App., 421 S.W.2d 790.

In his remaining points defendant contends (1) there was no creditable evidence that defendant knowingly agreed to assume the mortgage debt and (2) that there was no meeting of the minds between the Moores and himself as to whom the warranty deed was to be directed and as to whom was to assume the debt. We conclude both assignments are directed to the sufficiency of the evidence to support the judgment for plaintiff and will treat them accordingly.

In our view the record demonstrates that insofar as the Moores were concerned they had become disenchanted with their acquisition of the property (known as 'Cozy Courts') and in connection with a sale of the premises their paramount consideration was being released of personal liability on their note. Additionally, to realize a profit and avoid any real estate commission on the sale. And, as previously noted the Moores 'thought' and it was their 'understanding' the corporation was taking title and assuming the mortgage debt. This was contradicted by Philip Ashmore, their agent for the sale. He was asked specifically about advising the Moores as to who was to be the grantee in their deed. 'Q. And did you at that time explain to them that this was being deeded to an individual?

A. Yes, sir.'

As to defendant's knowledge and awareness as to his being the grantee in his individual capacity, and consequently assuming personal liability for the mortgage debt, Ashmore testified as follows:

'Q. I want to hand you what has been marked as Plaintiff's Exhibit 4, which is in the style of a warranty deed and ask you first to examine this document and I want to ask you, sir, with regard to the signing of that document by Mr. and Mrs. Moore do you know when X's were placed on it removing the words C. and H., or C. and S. Construction Company--Clinton S. and S. Construction Company and the word President?

A. Yes, sir, this was done prior to closing and prior to signing.

Q. It was in the condition that it is at this time at the time it was closed and signed by Mr. and Mrs. Moore?

A. Yes, sir.

Q. Did you have any conversation about that document with Mr. Shepherd prior to the time that it was closed and signed by Mr. and Mrs. Moore?

A. Yes, sir.

Q. Did you specifically have any conversation with regard to the...

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