Putthoff v. Walker

• Decision Date: 05 March 1923
• Docket Number: No. 14624.,14624.
• Citation: 213 Mo. App. 228,248 S.W. 619
• Parties: PUTTHOFF et al. v. WALKER et al.
• Court: Missouri Court of Appeals

248 S.W. 619

213 Mo. App. 228

PUTTHOFF et al. v. WALKER et al.

No. 14624.

Kansas City Court of Appeals. Missouri.

March 5, 1923.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Suit by Louis H. Putthoff and another against Harry B. Walker, as trustee, and another. From a judgment dismissing plaintiffs' bill, plaintiffs appealed to the Supreme Court, which transferred the cause (239 S. W. 108). Affirmed.

Marley & Reed, of Kansas City, for appellants.

Fyke, Snider & Hume, of Kansas City, for respondents.

ARNOLD, J.

This is a " suit in equity wherein plaintiffs seek to have surrendered, canceled, and adjudged to be void a certain note and deed of trust securing the payment thereof. The facts disclosed by the record are that on September 21, 1917, plaintiffs made, executed and delivered to the Commerce Trust Company of Kansas City, Mo., their promissory note, in which, for value received, they promised to pay the said Commerce Trust Company the sum of $1,250.00 and interest, in monthly installments; beginning on the first day of October, 1917, $25.00, and a like amount on each succeeding month thereafter, until the full amount was paid. Among other things, the note contained the following provision:

"If default is made in the payment of any installment, or interest when due, then all the remaining installments shall become due and payable at once."

As security for the payment of said note and interest, the makers thereof executed a deed of trust in the usual form, conveying to Harry B. Walker, as trustee for the payee of said note, its indorsees and assigns, a certain lot in the resurvey of Kemper Heights, an addition to Kansas City, Mo. The makers of the note defaulted in the payment of the installments and interest due under the terms of the principal note on the 1st days of October, November, and December, 1917, and January, 1918. The payee of said note assigned same to S. E. Cobb, who was the owner and holder thereof on April 15, 1918, on which date suit was instituted by Cobb in a justice court to recover the four installments then due. Judgment was rendered thereon in favor of Cobb. On June 11, 1918, defendants in said suit tendered plaintiff therein the full amount of said judgment and costs, and asked Cobb to accept same and release of record the deed of trust. Cobb refused, and this suit was instituted. Thereafter Cobb did accept the amount of the judgment and satisfied of record said judgment and costs, but refused to release the deed of trust. The amended petition sets out facts substantially as detailed above, and to this amended petition defendants demurred, on the ground that it failed to state a cause of action. The demurrer was sustained, plaintiffs refused to plead further, and judgment was entered dismissing plaintiffs' bill. Plaintiffs perfected their appeal to the Supreme Court, where it was held that the suit does not involve title to real estate, and the cause accordingly was transferred to this court.

There is nothing before us but the record proper. The position of plaintiffs is that, because of default in the payment of the four installments above mentioned, the entire note had matured, and that defendant Cobb, having elected to sue on the four installments then in default, could not split his cause of action, which was then the entire note, and that the judgment on the four Installments merged the entire note irate the judgment, and when the judgment was paid the list of the deed of trust was thereby discharged. This contention, of course, defendants refute. It is urged by defendants, and so stated in their brief, that plaintiffs stood by after having been summoned to answer to the suit filed before a justice, and allowed judgment to go by default, thereby admitting in the most formal way that the suit was properly brought. While the petition does not say that the judgment in the justice court was obtained on default of defendants therein, in the face of undenied statements of defendants herein that it was so secured, it may be accepted as a fact. This being the case, defendants are right in their contention that plaintiffs thereby admitted that suit was properly brought. They may not now take advantage of such dereliction. A similar situation was before the court in Gerhart v. Font, 67 Mo. App. 425 et seq., where It is said:

"* * * He allowed judgment to go, thereby admitting in the most formal way that that suit was likewise properly brought. This rule is not, as the trial court seemed to have assumed, that a person cannot split his cause of action, but that he cannot split it without his debtor's consent. It is a matter which concerns the debtor and creditor alone. Fourth National Bank v. Noonan, 88 Mo. 372, 377."

Here, the record shows that plaintiffs herein, without objection, allowed the judgment in the justice court in favor of the I plaintiff Cobb to go by default, thereby consenting to a "split action." They cannot now I complain. It is too late. In the case of Dank v. Noonan, supra, the...