Priest v. Oehler

• Citation: 41 S.W.2d 783,328 Mo. 590
• Parties: George T. Priest, Respondent, v. John G. Oehler, Jessie B. P. Oehler, Crystal Beach, Inc., William H. Smith and Nelson Cunliff, Defendants; John G. Oehler and Jessie B. P. Oehler, Appellants
• Decision Date: 05 September 1931
• Court: United States State Supreme Court of Missouri

41 S.W.2d 783

328 Mo. 590

George T. Priest, Respondent, v. John G. Oehler, Jessie B. P. Oehler, Crystal Beach, Inc., William H. Smith and Nelson Cunliff, Defendants; John G. Oehler and Jessie B. P. Oehler, Appellants

Supreme Court of Missouri

September 5, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Moses Hartmann, Judge.

Reversed and remanded (with directions).

Wurdeman Stevens & Hoester and A. H. Kerth for appellants.

(1) Plaintiff's bill states no equity. By his bill in equity he seeks to have defendants Oehlers enjoined from instituting suit on certain notes, which are endorsed by plaintiff and defendants Smith and Cunliff as sureties, and relies on an alleged contract of settlement, which he attempts to enforce. Plaintiff has an adequate and complete remedy at law to any action upon the notes held by defendants Oehlers, and further, has no right to anticipate that suit would be instituted, so as to entitle him to equitable relief. Savage v. Edgar, 3 A. L. R. 1021; Polhemus v Daly, 296 S.W. 442; Lester Real Estate Co. v. St. Louis, 169 Mo. 227; Stockton v. Ransom, 60 Mo. 535. (2) If injunction was a proper remedy the decision should have been for defendants Oehlers, as the testimony and evidence offered by plaintiff wholly fails to establish the alleged contract of settlement, or that plaintiff and defendants Smith and Cunliff performed their part of the alleged contract. The courts require strict proof, and parol contracts, to entitle plaintiff to equitable relief, must be clearly and conclusively proved. Taylor v. Von Schraeder, 107 Mo. 206; Alexander v. Alexander, 150 Mo. 579; McKee v. Higbee, 180 Mo. 263; Williamson v. Frazee, 294 Mo. 320, 242 S.W. 958. (3) If injunction and other relief requested in plaintiff's bill or petition was the proper remedy, the finding should have been for defendants Oehlers, for the reason that plaintiff has failed to show that he or defendants Smith and Cunliff carried out the terms of the alleged contract so as to entitle him to the equitable relief sought. There has never been a legal tender made nor acceptance on the part of the defendants Oehlers of the alleged contract. Applying the rule that an accord without satisfaction does not discharge the original debt, it has been consistently held that only a full and complete performance of the terms of accord will suffice, a part performance being insufficient. Peterson v. Wheeler, 45 Mo. 369; Cruth v. Quigley, 258 Mo. 651; First National Bank v. Leach, 94 F. 310; Shubert v. Rosenberger, 45 L. R. A. (N. S.) 934. An unaccepted tender of performance is insufficient to give efficacy to an accord. The plea of accord to be good must show an accord executed, not executory at some future time. A mere readiness to perform the accord or tender of performance will not suffice, and a plea of accord and satisfaction must not only show acceptance of the record, but that it was executed by the acceptance of the matters agreed upon in satisfaction. Citing Young v. Jones, 18 Am. Rep. 279. Nor is there ever a presumption that a new agreement has ever been accepted in satisfaction of a pre-existing indebtedness, the burden of proving such acceptance being upon the party alleging it. Woodward v. Miles, 24 N.H. 289; Curtis v. Browne, 63 Mo.App. 431; Lippold v. Held, 58 Mo. 213; Chapman v. Adams, 219 S.W. 132. (4) If the alleged contract did exist, as contended by plaintiff, then plaintiff and defendants Smith and Cunliff are joint several obligors and should have instituted a suit jointly as plaintiffs against the Oehlers as defendants, in order to entitle them to equitable relief. Cable v. Clarke, 21 Mo. 223; Rainey v. Smizer, 28 Mo. 310. A repudiation or release on the part of one joint obligor releases the obligee from the entire contract. Rainey v. Smizer, 28 Mo. 310. (5) There is no evidence that any tender was properly made by the plaintiff, and if there was ever any tender properly made the plaintiff has failed to keep the tender alive or make it good by bringing the money into court at the trial or by offering to do so. Andrews v. Bank, 234 S.W. 518; Mendell v. Howard, 208 S.W. 497; Woolner v. Levy, 48 Mo.App. 469; Owens v. Mfg. Co., 162 Mo.App. 667; Hudson v. Glencoe Gravel Co., 140 Mo. 103, 62 Am. St. 722; Knollenberg v. Nixon, 171 Mo. 445, 94 Am. St. 790; Landis v. Saxton, 89 Mo. 375.

Thomas Bond for respondent.

(1) Respondent's bill states a good cause of action in equity. Equity will intervene to prevent a multiplicity of suits. Melcher v. Exchange Bank, 85 Mo. 362; Eppright v. Nickerson, 78 Mo. 482; Barrington v. Ryan, 88 Mo.App. 85. Where a party's remedy at law is not as full, complete and adequate as he can secure in a court of equity, equity will take jurisdiction notwithstanding the fact that the party may have a remedy at law. N. Y. Life Ins. Co. v. Cobb, 219 Mo. 619; Hanson v. Neal, 215 Mo. 279; Pocoke v. Peterson, 256 Mo. 519; Barrington v. Ryan, 88 Mo.App. 85; McAllister v. Graham, 200 Mo.App. 279. (2) The evidence fully supports the cause of action stated in respondent's bill. The evidence conclusively shows that appellants accepted and acted under a written contract of settlement, and their action in so doing is the same as if they had signed the said written contract and, accordingly, they are bound by its terms. American Pub. & Engr. Co. v. Walker, 87 Mo.App. 503. (3) The record shows that respondent and appellants entered into a firm contract on March 17, 1928, which contract supplanted and abrogated all previous contracts, and this new contract determines the rights of respondent and appellants, and this whether or not its terms have been complied with by either party to the transaction. It is still the only contract by which the obligations and rights of the parties can be determined. Carmen v. Harrah, 182 Mo.App. 376; Worden v. Houston, 92 Mo.App. 371. (4) Appellants have waived any right to insist upon a defect in party plaintiff or defendant or incapacity of respondent to sue. Secs. 1226, 1230, R. S. 1919. Respondent's cause of action is single and not joint and can be enforced by him without consent or reference to any other person's rights. McNear v. Williams, 166 Mo. 369. (5) Respondent's bill pleads that respondent tendered performance of the contract and it was refused, and the record of the evidence supports this allegation in respondent's bill. (a) In an equity case it is not necessary to tender or plead performance, but the court will provide for it in its decree. Peak v. Peak, 228 Mo. 536; Hayden v. Railroad, 117 Mo.App. 90. (b) Where the record shows that if a tender had been made it would not have been accepted, it is unnecessary to make a tender. Deichmann v. Deichmann, 49 Mo. 107; Westlake v. St. Louis, 77 Mo. 47; Gerard v. Car Wheel Co., 123 Mo. 371; Tevis v. Tevis, 259 Mo. 33. (c) The question of tender was not raised at the trial, nor preserved in appellants' motion for new trial. It is therefore waived. Secs. 1226, 1230, R. S. 1919.

OPINION

Ragland, J.

This case comes to the writer for an opinion on reassignment. It is a suit in equity by a co-maker of six negotiable promissory notes to compel the holders of said notes, the payees therein, to surrender them to the makers, pursuant to the terms of an alleged oral contract entered into between the parties in substitution of the one evidenced by the notes. On the trial nisi a decree was entered in favor of plaintiff, awarding the relief prayed. The holders of the notes, defendants, bring the cause here on appeal. The facts necessary to an understanding of the questions presented will be set forth as tersely as may be.

Prior to August 12, 1926, the Crystal Lake Beach, Inc., through some arrangement with John G. and Jessie B. P. Oehler, the owners of approximately 160 acres of land in St. Louis County known as Crystal Lake Park, had at considerable cost erected on said land suitable improvements and were operating the same as an amusement park. In making the improvements and otherwise equipping the premises for an amusement resort, the Crystal Lake Beach, Inc., incurred an indebtedness to Nelson Cunliff and William H. Smith, contractors, in the sum of $ 50,000; and to Judge Priest, respondent's father, for money loaned, in the sum of $ 10,000. While so indebted the corporation was compelled through insolvency to suspend operations. Thereupon a conference, participated in by respondent, Cunliff, Smith and Mr. Alfred H. Kerth, an attorney representing the Oehlers, was had for the purpose of devising ways and means for refinancing the enterprise. Pursuant to an agreement reached at such conference, respondent, Cunliff and Smith organized a new corporation, the Crystal Beach, Inc., with a capital stock of $ 2,000; the Oehlers then conveyed to this corporation the property known as Crystal Lake Park for a named consideration of $ 243,000; the corporation thereupon executed a deed of trust on the property to secure the payment to the Oehlers of $ 237,000, evidenced by thirteen principal notes, also executed by it; the first six of these notes, each being for $ 5,000, drawn to fall due serially at periods of one year, were endorsed in blank by respondent, Cunliff and Smith. The notes were all dated August 12, 1926, and each bore interest at the rate of six per cent per annum, payable semi-annually. No cash passed; the giving of the thirteen notes and the deed of trust constituted the entire consideration of the conveyance.

It was thought by all of the parties, including the Oehlers, that through the scheme of refinancing just described they could sell the property at a sum sufficient to enable the owners to realize a satisfactory price for their land and the creditors of the Crystal Lake Beach, Inc., Judge Priest and Cunliff and Smith, to recoup...