Quigley v. Bartlett

• Decision Date: 07 April 1924
• Docket Number: No. 14690.,14690.
• Citation: 260 S.W. 494
• Parties: QUIGLEY v. BARTLETT et al.
• Court: Missouri Court of Appeals

260 S.W. 494

QUIGLEY v. BARTLETT et al.

No. 14690.

Kansas City Court of Appeals, Missouri.

April 7, 1924.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

"Not to be officially published."

Suit by Benjamin Quigley against H. M. Bartlett and another. Judgment for plaintiff, and defendants appeal. Affirmed.

D. M. Wilson, of Milan, for appellants.

W. K. Amick, of St. Joseph, and A. G. Knight, of Trenton, for respondent.

TRIMBLE, P. J.

Plaintiff brought suit in the ordinary form of an action on a promissory note for $5,220, dated February 28, 1921, due six months after March 1st of that year, bearing 8 per cent. interest per annum, payable annually, but to be compounded if not so paid, signed by both defendants.

The separate answers of the respective defendants admitted the execution of the note, but set up that it was given for the balance of the purchase price of 202 acres of land sold by plaintiff to the defendant Ben T. Bartlett; that in the contract for the purchase of said land it was agreed that plaintiff was to furnish a good and sufficient warranty deed, together with an abstract of title showing that said deed was executed, conveying a fee simple title to said land, subject to certain incumbrances thereon aggregating $17,000; that said note was to be, and was, placed in escrow in the Citizens' International Bank of Milan, Mo., and defendants have never consented that said note should be turned over to plaintiff; that at the time of bringing suit said note was not in the possession of plaintiff; that said abstract was never furnished, and that "there is another incumbrance on said land."

Plaintiff's reply denied generally and then set up the following:

That at the execution of the note plaintiff and Ben T. Bartlett entered into a written contract dated February 28, 1921, whereby plaintiff agreed to sell him the farm therein described for $22,220; that Ben T. Bartlett therein agreed to assume and to pay, as a part of said purchase price, a certain lien thereon of $13,000 and another lien of $4,000 held by one Barwell, with interest from March 1, 1921; that for the balance of said purchase price said Ben T. Bartlett was to give the note for $5,220 signed by himself and his father, H. M. Bartlett; that in said contract it was further agreed that the contract, the "good and sufficient" warranty deed, and the $5,220 note were to be deposited in escrow in the Citizens' International Bank, Milan, Mo., and to be delivered to second party on the payment of said $5,220 note and interest, and that possession of said farm was to be given to Ben T. Bartlett on March 1, 1921; that pursuant to said contract plaintiff deposited a good and sufficient warranty deed; that the same was, with the contract, left with said bank: that plaintiff performed the obligations incumbent upon him in said contract; that "defendant waived all the existence of each and all incumbrances, if any there existed, which plaintiff denies, that were on said land, not mentioned and described in said contract."

At the commencement of the trial plaintiff, by leave of court and over objection of defendants, amended his reply, by inserting therein that "if there be any incumbrance on said land plaintiff offers to satisfy same in accordance with the contract, or allow the same to be deducted from the note sued on."

Defendant Ben T. Bartlett was then allowed, over plaintiff's objection, to amend his answer by adding thereto, immediately after the allegation that there was another incumbrance on the land, the further allegation that—

"The provisions of said contract not having been complied with by plaintiff, this defendant on the ___ day of June, 1921, offered to deliver up possession of said land to the plaintiff, which was refused, and defendant now offers to deliver up possession of said land to the plaintiff."

A jury was waived, and the cause was tried by the court. Judgment was rendered for plaintiff for the amount of the note and interest, and the defendants have appealed.

The evidence shows that defendant Ben T. Bartlett, on February 28, 1921, entered into a written contract with plaintiff to purchase of the latter a farm of 202 acres for $22,220. In said contract Bartlett agreed to assume and to pay a first lien of $13,000 and also a second lien of $4,000 with interest thereon from March 1, 1921. He further agreed therein that for the balance of the purchase price he was to give a note for $5,220 of even date with the contract, due on or before September 1, 1921, to be signed by Ben T. Bartlett and his father, H. M. Bartlett, and bearing 8 per cent. interest per annum. In said contract it was further—

"agreed between the parties hereto that this contract, together with a good and sufficient warranty deed, executed by first party [plaintiff] and wife, conveying title to second party, and the note is to be placed in escrow in the Citizens' International Bank, Milan, Mo., and are to be delivered to second party upon the payment of said note of $5,220 together with the interest thereon. Full and complete possession of the above-described premises to be delivered to second party [Ben T. Bartlett] on March 1, 1921."

Plaintiff executed the warranty deed "subject to incumbrance of $13,000 and $4,000 which the second party herein assumes and agrees to pay," and warranted the premises to be otherwise free and clear except taxes for 1921 and years thereafter. Defendants executed the $5,220 note.

The contract, warranty deed, and note (being the note sued on) were placed in escrow in said bank, and defendant Ben T. Bartlett went into possession of said land on March 1, 1921. Later, pursuant to a subsequent agreement that plaintiff would put in the bank an abstract of title of the 202 acres, plaintiff did deposit along with the other papers an "additional" abstract of title, and this showed, in addition to the two deeds of trust referred to in contract and deed, a third deed of trust for $650. In June, 1921, Ben T. Bartlett offered to deliver plaintiff possession of the land with all the crops growing thereon if possession of the papers executed by him were surrendered, but plaintiff refused. The $5,220 note was not paid when it fell due on September 1, 1921, and this suit was brought on September 7, 1921. The trial was had on March 4, 1922, and in his evidence plaintiff admitted that he was to deed Ben T. Bartlett the laud "free and clear of all incumbrances except a $13,000 loan and a $4,000 loan." And he further admitted that there was at the time of the contract, and still was at the time of the trial, a third deed of trust for $650 on the land in addition to the two deeds of trust mentioned in the contract; that it was still unpaid; and that the papers were put in the bank in escrow "and never have been in my possession, none of them." He further testified that this $650 note represented the commission paid for obtaining the loan of $13,000, and on cross-examination first said neither he nor Ben T. Bartlett, knew anything about the commission note. But on redirect examination he said that it was considered to be a part of the interest on the $13,000 loan, making it 6½ per cent.; that he told Ben T. Bartlett of it, and they traded that way. But he said he was ready to satisfy and pay off the $650 note or have it credited on the note sued on.

The evidence shows that the $13,000 note is held by the Union Central Life Insurance Company, while the $650 note is held and owned by W. C. Burwell. But when plaintiff attempted to show that in reality the $13,000 loan was considered a 6½ per cent. loan (which was an attempt to make the $650 note and deed of trust merely a part of the $13,000 loan), the court sustained defendants' objection, ruling that the contract...