Psinakas v. Magas

• Decision Date: 22 January 1912
• Citation: 142 S.W. 1086,161 Mo.App. 19
• Parties: GUS PSINAKAS, Respondent, v. JAMES MAGAS, Appellant
• Court: Kansas Court of Appeals

142 S.W. 1086

161 Mo.App. 19

GUS PSINAKAS, Respondent, v. JAMES MAGAS, Appellant

Court of Appeals of Missouri, Kansas City

January 22, 1912

Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.

AFFIRMED.

Judgment affirmed.

N. T Gentry for appellant.

Harris & Finley for respondent.

OPINION

JOHNSON, J.

This is an action to recover the amount of an indebtedness of defendant to a third person which plaintiff was compelled to pay in order to discharge personal property owned by him from the lien of a mortgage thereon given to secure the payment of said indebtedness. The cause is here on the appeal of defendant from a judgment recovered by plaintiff for the full amount of his demand.

The parties are Greeks who have lived in this country about nine years and who do not read or write the English language and speak it poorly. Defendant owned two confectionery shops in Columbia, one on Ninth street and the other on Broadway. He bought a soda fountain on the installment plan for each store and in payment of the purchase price of each fountain gave a series of promissory notes, secured by a chattel mortgage on the fountain. Afterward he formed a partnership with plaintiff and both shops were owned and operated by the partnership until July 18, 1910, when the partnership was dissolved by mutual consent. The contract of dissolution was prepared by a lawyer, reduced to writing and signed by the partners. By the terms of the contract, defendant became the sole owner of the shop on Broadway "together with the entire stock, goods, furniture, fixtures, etc., contained therein, together with the lease now held upon the same" and plaintiff became the owner of the Ninth street shop, including "the entire stock of goods, wares, merchandise, furniture and fixtures of every nature, etc."

The partnership was indebted to a trust company in the sum of one thousand dollars and the contract provided that plaintiff should assume and pay that debt. Further the contract required defendant "to pay all bills heretofore contracted for and in behalf of the said James Magas or Magas and Psinakas, . . . up to and including all bills contracted prior to this date." On its face this contract purported to include the entire dissolution agreement of the parties. Evidently the description of the property each partner intended to convey to the other included the soda fountains. Plaintiff became the owner of the fountain in the shop conveyed to him and defendant became the owner of the fountain in the other shop. The contract, however, failed to mention the unpaid purchase price of either fountain and that omission gave rise to the present controversy. Defendant did not pay the installment notes given for the Ninth street fountain and plaintiff paid them and claims that he was compelled to do so to avoid losing the fountain by the foreclosure of the mortgage on it. The petition alleges that "under the terms of said agreement the defendant, in consideration of said transfer and division, agreed and undertook to pay all bills theretofore contracted for and in...