Rhodes v. Dickerson

• Citation: 95 Mo. App. 395,69 S.W. 47
• Parties: RHODES v. DICKERSON.
• Decision Date: 10 June 1902
• Court: Court of Appeal of Missouri (US)

69 S.W. 47

95 Mo. App. 395

RHODES v. DICKERSON.

Court of Appeals at St. Louis, Missouri.

June 10, 1902.

FRAUD — RIGHT OF ACTION — VOLUNTARY PAYMENT — PLEADING.

1. Plaintiff was indebted to defendant on a negotiable note, secured by mortgage, payable "on or before" a future date. He applied to defendant (the lender) to pay off the same. Defendant declared he did not have the note, and made a variety of statements concerning its whereabouts, which the jury found to be untrue, but which caused considerable delay before plaintiff found that the note had been transferred to a bank by defendant after plaintiff had attempted to discharge the same as aforesaid. Held, that plaintiff had a cause of action for fraud on said facts to recover the interest which he was obliged to pay to the last holder of the note according to its terms, accruing after his application to defendant to pay it.

2. On the facts outlined in the foregoing headnote, plaintiff's action for fraud arose when defendant prevented the prompt payment of the note by willful false statements concerning the same, by which plaintiff was misled to his damage.

3. Fraud constitutes a cause of action at law.

4. As a general rule, a voluntary payment of money, made with a full knowledge of facts, cannot be recovered back.

5. A petition on the ground of fraud is reviewed, and held to contain a good statement of a cause of action.

(Syllabus by the Judge.)

Appeal from circuit court, Greene county; Jas. T. Neville, Judge.

Action by E. J. Rhodes against Jerome Dickerson. Judgment for plaintiff. Defendant appeals. Affirmed.

G. A. Watson, for appellant. J. T. White and W. R. Self, for respondent.

BARCLAY, J.

The learned counsel for the parties in this case do not agree as to the nature of the action. We consider it an action at law for damages for fraud. Many of the material facts are not disputed. In June, 1898, plaintiff borrowed of defendant $12,500. As security for the loan he executed a mortgage to defendant on certain lands in Arkansas. The loan was evidenced by a note to the order of defendant, dated June 6, 1898, with interest from date at 10 per cent. per annum, to be compounded annually. It was payable by its terms "on or before four years after date." At the end of the first year, in June, 1899, plaintiff paid the first installment of interest on the note. The following year, May 31, 1900, plaintiff notified defendant that he was ready, and desired, to pay the whole of said indebtedness, principal and interest. The petition charges that defendant then stated to plaintiff that the note and security were in Michigan in the possession of a stranger, when in fact defendant then had them under his control. Plaintiff then went to St. Louis and caused the money necessary to pay the full amount of said interest and principal to be sent to Springfield, Mo., and to be deposited with a banking company. On June 11, 1900, defendant was notified by said banking company that the money was there, ready to be paid to him in full for said note and accrued interest. Shortly afterwards in the same month, 1900, plaintiff made a tender to defendant in gold coin of the United States of the full amount then due upon the note, including interest to that date; but the defendant refused to accept the same, and refused to surrender the note or to take any other step to release plaintiff's obligation. Plaintiff charges that defendant further made a number of misrepresentations to plaintiff concerning the whereabouts of the note, so that plaintiff was unaware in whose custody the same was until July 7, 1900, when plaintiff discovered that the note was in the possession of the Union National Bank of Springfield as owner. Thereupon plaintiff immediately paid off the note, with interest, to the bank on July 7, 1900, and procured the surrender of said note and mortgage. This action is for the amount of interest which plaintiff was obliged to pay in excess of what was due at the time plaintiff offered to make payment to defendant and was prevented from discharging the obligation by reason of the facts aforesaid. The amended answer of defendant (besides a general denial) admitted the execution and delivery of the note, as well as the tender of the principal and interest to defendant at the time mentioned. But defendant denied that he was then the owner of the note, but alleged that prior to that time it had been transferred for value to the Union National Bank. The case was tried with the aid of a jury. There was much evidence to sustain plaintiff's allegations. Defendant did not testify at all. The president of the Union National Bank, as a witness for defendant, stated that his bank, June 15, 1900, bought the note of defendant, who offered it for sale. The following instructions were given by the court of its own motion, viz.: "(1) By the terms of the note, read in evidence, the plaintiff had a right to pay same at any time upon reasonable notice to the holder thereof. (2) If you find from the evidence that plaintiff was at any time ready and willing to pay off the note, and that he so notified defendant, and if you further find from the evidence that the defendant was at the time of receiving such notice the owner of said note, then it was defendant's duty to act in good faith with plaintiff in his endeavor to pay same; and if you further find that defendant made any false statement to plaintiff in reference to the ownership or whereabouts of the note, for the purpose of deceiving him and preventing or delaying the payment thereof, and that plaintiff was deceived thereby, and was ready and willing to pay the same at all times until the note was finally paid, and that he used all reasonable endeavors to pay the same; and if you further find from the evidence that by reason of the foregoing state of facts plaintiff was compelled to, and did, pay a greater amount of interest in paying off the note than he otherwise would have done, — then you will find the issues for the plaintiff, and assess his damages at a sum equal to the amount of such increased interest, not to exceed the amount sued for; that is, $115. (3) It devolves upon plaintiff to establish all of the foregoing facts by a preponderance or greater weight of the evidence, and unless he has done so your verdict should be for the defendant. (4) Upon notice by the maker of a desire to pay a note of the character of the one in controversy, each party is entitled to a reasonable time, according to the circumstances in the case, to complete the transaction; and what a...