Robertson v. Shepherd

• Decision Date: 26 November 1901
• Citation: 165 Mo. 360,65 S.W. 573
• Parties: ROBERTSON v. SHEPHERD et al.
• Court: Missouri Supreme Court

65 S.W. 573

165 Mo. 360

ROBERTSON v. SHEPHERD et al.

Supreme Court of Missouri, Division No. 2.

November 26, 1901.

APPEAL IN EQUITY—TRIAL DE NOVO—EXECUTION OF CONTRACT.

1. Where plaintiff claims the execution of an instrument, which defendant denies, and the trial court finds in favor of plaintiff, though the supreme court will defer somewhat to that finding, the case being in equity, the court will consider it for the most part as if it originated in such court, and was to be heard for the first time.

2. In an action to enforce a contract which

was in plaintiff's handwriting, and was unreasonable in its provisions, and unlike what a man of the intelligence and experience of defendant would execute, where the defendant denies its execution, and the evidence is conflicting as to the time and place where plaintiff claims it was executed, and there are other circumstances tending to throw discredit on the evidence of the plaintiff, a finding for plaintiff will be reversed on appeal.

Appeal from circuit court, Cass county; W. W. Wood, Judge.

Action by T. O. Robertson against H. C. Shepherd and another. From a judgment for plaintiff, defendants appeal. Reversed.

The petition alleges: That on the 5th day of June, 1891, the plaintiff, together with his wife, executed a promissory note in the sum of $2,000, together with 10 interest coupons for $70 each, all of which coupons have been paid, which note was made payable to Samuel B. Smith; and to secure the payment of it the plaintiff and his wife executed to D. E. Stoner, trustee for Smith, a deed of trust on the following described property in Kansas City, Mo.: "Lot 6 and the south eleven feet of lot 5, block 4, East Side Place." That the deed of trust was recorded at Kansas City on July 14, 1891. That the deed of trust and note were in the hands of H. C. Shepherd, the codefendant, who was threatening to foreclose it. That Stoner, the trustee, refused to act, and that R. S. Stone, the sheriff of Jackson county, had become the successor in the trusteeship, and that said Shepherd would cause R. S. Stone, the sheriff, to sell the property, unless restrained by injunction. The petition then proceeds to set up: That Shepherd also had another note and deed of trust, to wit, a note in the sum of $4,750, upon the same property, which note and deed of trust were given by Wm. McClurg to the plaintiff himself, together with six interest coupons, thereto attached, in the sum of $142.50 each. That, in order to secure payment of the same, McClurg had given a deed of trust on the same property, under date of April 23, 1894, to Jas. H. Harkless, as trustee for T. O. Robertson, and that this deed of trust was recorded in Kansas City, Jackson county. That Harkless had declined and refused to act as trustee, and that R. S. Stone, the sheriff, became the successor in trust for the purpose of foreclosing this deed of trust. That this deed of trust was also at the time in the possession of H. C. Shepherd, who claimed to hold the same by transfer from T. O. Robertson. That Robertson was the owner of the real estate subject to the two above-described deeds of trust, and was the owner at the time the first-described deed of trust was given. That he thereafter conveyed the property to McClurg, subject to the first mortgage; and while the said McClurg remained the owner thereof he (McClurg) executed said second deed of trust to the plaintiff, and after executing it McClurg reconveyed the property to the plaintiff; and that before the execution of the contract hereinafter mentioned Shepherd came into possession of both said deeds of trust and notes. That there were also two tax bills in the sum of $117.13 total, with interest, issued for paving the street in front of the property, which were also in the possession of H. C. Shepherd at the time of making the contract hereinafter mentioned. That afterwards, on or about the 30th of September, 1896, the plaintiff and H. C. Shepherd entered into a contract by which both said deeds of trust, and all notes and coupons secured thereby, and the special tax bills were settled, canceled, and discharged in full, the agreement by which it was settled and discharged being as follows: "This agreement, made and entered into this 30th day of September, 1896, by and between T. O. Robertson and H. C. Shepherd, witnesseth: That the said T. O. Robertson does, in consideration of the covenants and agreements hereinafter made by the said H. C. Shepherd, hereby release H. C. Shepherd from any and all liability for the entire stock of drugs and fixtures formerly belonging to James M. Love and Company, and by them sold to T. O. Robertson, which were located at 546 Main street, Kansas City, Mo., and which belonged to T. O. Robertson, and were sold by H. C. Shepherd, and proceeds thereof used by H. C. Shepherd, for which said T. O. Robertson hereby receipts said H. C. Shepherd for in full; and T. O. Robertson hereby assigns all right for damages in the case of Fuller, Fuller & Company against said T. O. Robertson, wherein the above-described stock of drugs and fixtures were attached by Fuller and Fuller Co., and said attachment dissolved, and T. O. Robertson hereby assigns to and authorizes H. C. Shepherd to collect any and all moneys for damages from Fuller and Fuller Company or their bondsmen, or both; and said T. O. Robertson hereby assigns and transfers to H. C. Shepherd all right for damages in the case of Woolf Brothers against T. O. Robertson, wherein the above-described stock of drugs and fixtures were attached by Woolf Brothers, and said attachment dissolved, and said T. O. Robertson hereby authorizes H. C. Shepherd to collect any and all money for damages from Woolf Brothers or their bondsmen, or both; and T. O. Robertson does hereby assign to H. C. Shepherd all his interest in or rights growing out of this number 24,221 and 24,223, wherein I. M. Ridge attached the stock of drugs and fixtures then located at 915 Main street, Kansas City, Mo., and T. O. Robertson hereby assigns all his interest in said stock of drugs and fixtures to H. C. Shepherd, and further assigns all right for damages against I. M. Ridge or his bondsmen, or both, on account of said last-mentioned attachment suits number 24,221 and 24,223, and authorizes said H. C. Shepherd to collect any and all moneys growing out of said suits, including the $1,050 now in the hands of the sheriff of Jackson county Mo., and these presents shall be a receipt in full for the same; and the said T. O. Robertson hereby further receipts H. C. Shepherd in full for seven hundred and fifty dollars ($750.00), paid by T. O. Robertson, the receipt of which is hereby acknowledged by and between the parties hereto; and said T. O. Robertson hereby releases said H. C. Shepherd from all liability for partnership funds heretofore existing between the said T. O. Robertson and H. C. Shepherd, and this is a receipt in full for any and all such funds; and T. O. Robertson releases any and all his rights existing on account of such partnership existing between T. O. Robertson and H. C. Shepherd. In consideration of all the aforementioned receipts, assignments, releases, moneys, and agreements, the said H. C. Shepherd does hereby agree to turn over to T. O. Robertson, and cancel of record, two certain mortgage bonds,—one for $2,000.00, signed by T. O. Robertson and wife, in favor of Samuel S. Smith, and by him assigned to H. C. Shepherd, and bond dated June 5, 1891, and secured by trust deed recorded July 14, 1891, in Book B 473, page 541, in Kansas City, Mo.; and the other mortgage bond is for $4,700.00, with six coupons attached, each for $142.50; both bond and coupons are executed by William McClurg and his wife in favor of T. O. Robertson, and in Shepherd's hands as collateral to any liability for his signing a forthcoming bond for Robertson to replevin the stock of drugs (first mentioned on first page of this contract from Woolf Brothers); and H. C. Shepherd agrees to withdraw said $4,750.00 bond and coupons from the court files at Richmond, Ray county, Mo., and turn over to T. O. Robertson, and cancel of record; bond and coupons are dated April 23, 1894, and secured by trust deed record Nov. 13, 1894, in Book B 570, page 617, in Kansas City, Mo.; and H. C. Shepherd agrees to turn over to T. O. Robertson and cancel of record two special tax bills for paving Olive street, No. 51 and 52, amounting to $117.13. Said bonds and tax bills are liens until released of record on lot 6 and south 11 feet of 5, block 4, East Side Place, an addition to Kansas City, Mo. This agreement settles all litigation between the parties hereto, and cancels all notes and accounts between them, and this contract shall be fulfilled within a reasonable length of time from this date. It is agreed that a letter book copy shall be made of this agreement, and treated as the original. T. O. Robertson. H. C. Shepherd. Witness to signatures: J. F. Robertson." That thereafter, on the same day, the defendant Shepherd, as part and parcel of said contract, made and signed another contract, or part of said original contract, as follows, to wit: "Kansas City, Mo., September 30th, 1896. By way of explanation, so that there cannot be any misunderstanding of the meaning of the agreements made by me in the contract this day executed by T. O. Robertson and myself, wherein I am to cancel and turn over to T. O. Robertson two bonds, one for $2,000.00, the other for $4,750.00, together with 6 coupons for $142.50 each. Both bonds are secured by deeds of trust on lot 6 and south 11 feet of lot 5, block 4, East Side Place, an addition to Kansas City, Mo.; and under said contract I am to cancel and turn over to T. O. Robertson the following personal notes executed by T. O. Robertson: One for $500.00, dated July 16th, '94; one for $500.00, dated Aug. 27th, '94; one for $2,500.00, dated Sept. 22, '94; one for $300.00, dated Oct. 1st, 1894; and another for $710.95, dated...