Olbert v. Key

• Decision Date: 05 May 1936
• Docket Number: No. 23072.,23072.
• Citation: 93 S.W.2d 1048
• Parties: OLBERT v. KEY.
• Court: Missouri Court of Appeals

93 S.W.2d 1048

OLBERT v. KEY.

No. 23072.

St. Louis Court of Appeals. Missouri.

May 5, 1936.

Appeal from Hannibal Court of Common Pleas, Marion County; Edmund L. Alford, Judge.

"Not to be published in State Reports."

Action by Bertha Olbert against Roger R. Key. From the judgment, the plaintiff appeals.

Affirmed.

James P. Boyd, of Paris, and Mahan, Mahan & Fuller, of Hannibal, for appellant.

Rendlen, White & Rendlen, of Hannibal, and Olliver W. Nolen and William W. Barnes, both of Paris, for respondent.

HOSTETTER, Presiding Judge.

This is a suit based upon a promissory note dated December 1, 1929, for the sum of $2,250, bearing 6 per cent. interest per annum from date, on which were indorsed the following payments as credits, viz.: November 22, 1930, $50; December 28, 1930, $85; and February 27, 1932, $135.

The suit was brought in the circuit court of Monroe county and was removed, by an order changing the venue, to the Hannibal court of common pleas, in which last-mentioned court it was tried to a jury, which, on the 22d day of September, 1933, returned a verdict in favor of the plaintiff in the sum of $400.

At the time the note was executed by defendant, he and the plaintiff were husband and wife and a divorce suit was then pending in the circuit court of Monroe county, wherein the husband was the plaintiff, and a divorce was awarded him in December, 1929, shortly after the execution of the note. They had two daughters, ten and eleven years of age at that time, and the plaintiff had, on the 22d day of September, 1929, moved from the family farm home in Monroe county to the city of Chillicothe, Mo., for the purpose of attending school, taking the two children with her.

The petition in the instant case was in conventional form. The defendant in his answer, after admitting the execution and delivery of the note sued on, set up that prior to the final determination of the divorce suit a property settlement had been made by him with the plaintiff and that at the solicitation of the plaintiff and by reason of her representations and promises that she would take the said two daughters and keep them and care for them until they completed their high school work, he, in consideration of such agreement and promise, executed the note sued on; that soon thereafter all of plaintiff's promises, agreements, and guarantees proved an entire failure although relied upon in good faith by him; that the consideration thus relied on was not received by the defendant; and that the consideration for the note had failed.

The plaintiff's reply was in substance that for part of the time following the separation she kept the two daughters in her home until such time as she was unable to further keep them and that defendant then agreed to take and keep them; that at the time plaintiff delivered the two daughters to defendant that he said nothing nor did anything to lead plaintiff to believe that he had any intention of claiming the forfeiture of the note sued on; that after defendant had said daughters in his custody for more than one whole year he paid plaintiff one year's interest on said note, the sum of $135, and that at that time made no claim that the consideration for said note had failed by reason of plaintiff returning the children to defendant; that in July or August, 1932, she demanded the payment of the note, both principal and interest; that defendant stated that if she would give him time he would pay the last cent of it; that plaintiff agreed to do so and did continue to decline to sue upon said note or undertake to collect the same and did not bring suit until the 1st day of March, 1933; that if defendant had any right to claim a forfeiture of said note by reason of the consideration having failed, by his action, silence, and failure to claim such rights, his payment of interest after the time he should have claimed his right of forfeiture, and by reason of his promise to pay the note in July or August, 1932, he had waived his right to now claim that the consideration of said note had failed; and that he was estopped from claiming same. There was a direct conflict in the testimony of plaintiff and defendant on this point.

Plaintiff's testimony was substantially as follows:

That the defendant wrote the body of the note and signed and delivered it to her at Chillicothe on December 1, 1929, and that he wrote each of the three credits on the back of the notes; that the credit of February 27, 1932, of $135 was paid by defendant giving plaintiff a check for $50 and plaintiff allowing defendant to retain $85 to aid in the expense of maintaining the two children and that at the time of such payment the defendant said nothing about repudiating, or refusing to pay, the note, and that at no time had he ever claimed or said that the note was given for the consideration of plaintiff keeping and caring for the children; that while she lived in Chillicothe defendant paid her $750 for her car.

Her version of the conversation had in July or August, 1932, at the home of Mrs. Peckinpaugh in Paris, Mo., where the children were then staying, was as follows: "I said, `I hear you are going to get married, I would like to have my money.' He said: `I am not going to pay you.' I said: `All right, somebody can make you.' He said: `The law will get it all.' I said: `All right, do I understand you to say you do not intend to pay?' He said: `If you will just wait, I will pay you every cent of it.'"

Plaintiff further testified that that was the last conversation that she had with him personally; that on March 1, 1933, she talked with him from the circuit clerk's office at Paris over the telephone; that she asked him if he would meet her at the bank and he said "No"; that she then said she would come to his home and he said, "What do you want?" and that she said, "What do you intend to do about the note?" and he made no answer.

The defendant in his testimony admitted that he wrote the body of the note at Chillicothe and executed it there and that at that time he had a divorce suit pending against her in the Monroe county circuit court; that the two daughters were present when they had their conversation at Chillicothe leading up to the execution of the note; that he said he could not take care of the children at his home as his mother was sick; that if she would take care of them and school them through high school that he would give her this $2,250 note and help her with the children besides; that the note was signed immediately following this conversation; that the divorce was granted on December 12, 1929, and that she kept the children until the Christmas holidays of 1930 when she brought them back to him and told him that she could not take care of them any longer as she was going to get married; that he said that he would take care of them himself and if she wanted to donate anything it was perfectly all right; that she asked him about the note and he said that according to their agreement he did not owe her the note.

He further testified that he made the credit of the first $50 payment, but denied entering the credit of the $85 in December, 1930, and also denied entering the credit on the back of the note for $135 on February 27, 1932. He claimed that the $50 that he paid by check on February 27, 1932, was not a payment on the note at all but was a gift. He denied the conversation that she claimed took place at the Peckinpaugh home and denied having a conversation at the home of Mrs. Peckinpaugh, at all, but said it was at the National Bank.

He testified that during the time the children stayed at Mrs. Peckinpaugh's he paid $50 a month for their board and room and for looking after them, and that after he was married, on August 13, 1932, he took the children into his own home and had kept them there ever since; that they had been in school since they were returned to him by their mother in 1930 and were in school at the time of the trial; that his giving the note to her was for taking care of the children and schooling them until they were through high school; that she promised that she would; that she kept the children and sent them to school for a period after the note was made until the Christmas holidays of 1930; that he went to Chillicothe to bring the children home for the holidays and that she told him that she was not going to take care of the children any longer for the reason that she was going to get married; that he was then staying at a hotel and had no other home (his mother was then dead); that he took the children and kept them at the hotel until February and paid their expenses and secured the place at Mrs. Peckinpaugh's, who was not related to him or to the plaintiff; that he stayed at Mrs. Peckinpaugh's with the children for awhile and that he put them in school; that their mother visited them once while they were living at the hotel and a few times at Mrs. Peckinpaugh's home; that he was away at the hospital when he left the children at Mrs. Peckinpaugh's; that plaintiff was then living on a farm near Granville; that he was gone about two months and that he remarried on the 13th of August, 1932, and established a home and took the children to live with him and his second wife and that he kept them in school; that up to that time the children had been in the Peckinpaugh home from the time he moved from the hotel except about two months in 1931 when he took them to Canada; that they had not been with their mother since he remarried; that while staying at the hotel one of the...