Poulson v. Collier
| Decision Date | 06 July 1885 |
| Citation | 18 Mo.App. 583 |
| Parties | WILLIAM POULSON, Respondent, v. J. M. COLLIER, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Clinton Circuit Court, HON. GEO. W. DUNN, J.
Reversed and remanded.
Statement of case by the court.
This suit was tried on the following petition:
The answer of defendant was as follows:
" Now comes the defendant in the above cause and for answer to plaintiff's petition says, that one John Stevenson, whose name is subscribed to the note described in plaintiff's petition, executed the same as principal; and that the defendant, at his request, signed said note as surety, and received no part of the consideration for which said note was given, all of which the plaintiff well knew.
That on the ____ day of October, 1877, the said Stevenson, in order to provide for the payment of said note, conveyed, assigned and set over to the defendant, all those tenements situated in the town of Cameron, in said county, and known and described as lot number 2, in block number 28, on the plat of said town. That it was then and there agreed by and between said plaintiff and the said Stevenson, that plaintiff should enter into possession of said tenements, and let the same to such person or persons as he might choose, and receive and collect the rents and profits thereof, and apply the same as they accrued, in payment of said note; that in pursuance of said agreement, the plaintiff then and there entered into said premises and took possession thereof, and let and rented the same for a long time and received and collected the rents arising therefrom, and that the monies received from said rents have long since paid off and discharged said note and all the interest due thereon.
And for further answer defendant says that he executed the note sued on as security for one John Stevenson, whose name is also signed to said note, and at his request, and received no part of the consideration for which said note was given, all of which plaintiff had full knowledge.
That on the ____ day of October, 1877, the said Stevenson, for the purpose of further securing said note and providing for the payment of the same, conveyed and assigned to the plaintiff all those tenements situated in the town of Cameron, in said county, and known and described on the plat of said town as lot number 2, in block 28; that it was then and there agreed between plaintiff and said Stevenson that plaintiff should enter into said property, and let and rent the same to such persons as he chose, and collect and receive the rents thereof, and apply the same as they accrued in the payment of the note sued on; that plaintiff then and there did take possession of said tenements, and rented the same, and continued in possession, and to receive the rents thereof for a long time, to-wit, for the period of over four years that after he had received a large sum of money from the rents aforesaid, and more than was necessary to discharge the debt upon said note, the plaintiff, instead of applying the same to the payment thereof, as he was in duty bound squandered the same in a fruitless effort to retain possession of said tenements, and to continue in the receipts of the rents and profits thereof, beyond the time when such possession was necessary to the discharge or security of his debt; that on the 17th day of March, 1881, suit was instituted in this court for the possession of said lot, by one William Orr, against the plaintiff; that at that time plaintiff had received, and had in his possession, a sum of money sufficient to discharge said note and all claims which he then had against said Stevenson, and his right to possession of said property under the agreement aforesaid had ceased and terminated; that instead of delivering up the possession of said property, as the said Orr requested him to do, before the commencement of said cause, and applying the rents and profits in his hands in payment of said note, he entered upon a fruitless and unnecessary defence of said suit, and has squandered the said rents and profits in said defence. Wherefore defendant says that he is discharged from liability on, or because of his executing said note aforesaid, and he prays to be dismissed with costs."
The reply was a general denial. The plaintiff read in evidence the note sued on, together with the endorsements thereon, as follows:
" $100.00. CAMERON, Mo., May 4, 1876.
Six months after date we promise to pay to the order of Wm. Poulson the sum of one hundred dollars, for value received, to bear ten per cent. interest per annum from date. If the interest is not annually paid to become as principal, and bear the same rate of interest, payable without defalcation or discount. And we hereby waive all rights of exemption of property under the laws of Missouri or any other state, and agree that any-property we may have shall be liable for the payment of this note. And we further agree to pay all costs and all attorney fees, should this note have to be collected by law, including all expenses of collection.
| Due November 4, 1876. | JAMES STEVENSON, |
| J. M. COLLIER." |
The endorsements are as follows:
Plaintiff then rested.
The defendant, then, to sustain the issues on his part, was sworn as a witness in his own behalf, and testified as follows:
" I signed this note as security for James Stevenson. It was given for money loaned by plaintiff to said Stevenson. I received no consideration for signing the note. In October or November, 1877, the plaintiff took possession of a house and lot in Cameron, belonging to Stevenson, and rented it to get his pay on the note; he had another note at the time of one hundred dollars against Stevenson; this note was not secured. Plaintiff about that time told me that he had been to see Stevenson, and that Stevenson had told him to take possession of the property, and rent it, and collect the rents until he got his pay on both notes, and that he was doing so. I was occupying the barn on the lot at the time, and plaintiff said that if I would keep it, and pay him rent for it, he would apply whatever I paid in payment of my note. I kept the barn, at his request, and paid him altogether $28.30; this he agreed, in consideration of my keeping the barn, to credit on the note I was on.
In August, 1880, he gave me a piece of paper which he said contained a list of all the rents he had received up to that time, and told me to figure it up and see how near it came to satisfying the notes. He said he guessed he had pretty near got his pay. I kept the paper two or three days, but did not get time to make the calculation; the whole amount of credits at that time, shown by the paper, was $225.00.
A few days afterwards plaintiff came and said we could get Mr. Riggs to make the calculation, as his school had not begun yet; so he took the paper and gave it to Riggs. Plaintiff continued to collect the rents a long time after that; I think he kept it until last spring, that is the spring of 1882. Mr. Sidebottom occupied it nearly all the time plaintiff was in charge of it.
Sometime after that, in October, I think, 1880, the property was advertised for sale for taxes, and Mr. Poulson came down to bid it in. After he had come back he told me that Orr had paid the taxes and would not let it come to sale. Orr had bought the property at a sale under an execution against Stevenson, and was claiming it. I says to him, He said, ‘ I know I have got my money, but I can't give up the property, for I would be responsible to Stevenson if I gave it up to any one else.’ I says, " then I want you to give me my note; you admit you have got your pay.' He says, ‘ I won't give up the note, for maybe I can't keep the money.’ I said, " " the notes are paid and I want mine.' He refused to give up my note. I afterwards, about the time Orr brought suit, had another conversation with him about it; I urged him then to give up the property to Orr, and offered to pay anything that was yet due on my note if he would give it up; he refused to do so, but offered to give me my note if I gave him a hundred dollars. I says ‘ why should I give you a hundred dollars? you have before admitted that the note is paid, but if there is any balance due I will pay it; give up the property and make the calculation, and if there is any balance due I will pay it.’ He refused to do so, but demanded a hundred dollars.
Plaintiff never made any improvements upon the property, except that he changed the stable door from a swinging door to a sliding door, and he put a curb around the well; this was made of a store box which he got and put over the well; the change in the stable door was not necessary, as the doors did very well as they were."
Defendant then introduced Isaac Sidebottom, who testified as follows:
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