Schlanker v. Smith

• Decision Date: 07 November 1887
• Parties: EDWARD SCHLANKER, Appellant, v. ARMSTRONG SMITH, Respondent.
• Court: Kansas Court of Appeals

27 Mo.App. 516

EDWARD SCHLANKER, Appellant, v. ARMSTRONG SMITH, Respondent.

Court of Appeals of Missouri, Kansas City.

November 7, 1887

APPEAL from Montgomery Circuit Court, HON. ELIJAH ROBINSON, Judge.

Reversed and remanded.

Statement of case by the court.

This was an action of replevin, begun before a justice of the peace, for the recovery of a horse. The plaintiff based his title on a chattel mortgage, executed by the defendant to secure the payment of a note for ninety dollars made by the defendant and payable to the plaintiff. The case was tried before the justice, and an appeal was taken from the judgment rendered by him to the circuit court. Payment of the note was the sole defence made. In support of that defence the defendant testified:

" In December, 1884, I sold plaintiff my farm in Montgomery county, and he then paid me two hundred dollars to bind the bargain; I was to give him possession on the first of March, 1885, and he was to then pay me the balance of the purchase money; in February, 1885, plaintiff came to my house and wanted me to let him off, but I told him I could not very well do it, as I had bargained for another farm, and he then cried and said it was too hard to lose what he had paid me but that his wife did not want to leave the neighborhood where he then lived; and it was finally agreed that I should pay him ninety dollars, but I did not have the money, and I gave him this note and this chattel mortgage to secure the same; in May following the plaintiff came to me again and asked me if I still wanted to sell my farm; I told him my health had improved and I didn't care so much about it but we finally traded again, the plaintiff agreeing to give me twenty-five dollars per acre, amounting to thirty-five hundred and fifty dollars; he said to me that he had paid me two hundred dollars on the first trade, and twenty dollars on a cane-mill and hay stack, and that I had said I would give him twenty-five dollars to find me a purchaser and he was himself the purchaser, and that he would take my farm at my price if I would let in all these amounts, in all two hundred and forty-five dollars, as in part payment, and I accepted his offer; he then said he had paid me two hundred and forty-five dollars and that he would pay me two dollars more to bind the bargain tighter, and he took two dollars out of his pocket and gave it to me and said that would leave thirty-three hundred and three dollars; he then said, ‘ now your ninety-dollar note is paid off,’ and I asked him to give it to me, and he said he didn't have it with him, but would give it to me in Danville the following Wednesday, when and where we had agreed to meet; on the following Monday Mr. Schlanker's agent came to me and said that he had received a card from Schlanker in which he had requested him to inform me that he would not take my farm unless I knocked off three dollars; I replied that I would not knock off anything more and that Mr. Schlanker must comply with his bargain; this was the last I heard from plaintiff for some time; he afterwards told me he wrote that postal card to his agent, Mr. Martin; plaintiff came to my house again in March and asked me for the ninety dollars; I told him I did not owe him anything, as the note had been paid in the trade; I was always willing to comply with the contract on my part; Mr. Bourne was present when the last conversation took place at my house."

It was conceded that the defendant had not, in fact, conveyed the real estate to the plaintiff.

For the defendant the court gave the following instruction:

" If the jury shall believe, from the evidence in this cause, that the note offered in evidence was to be paid as a part of the purchase money on said lands, and that plaintiff failed to comply with his part of said contract for the purchase of said lands, then the verdict must be for the defendant."

The jury found for the defendant, and from a judgment accordingly rendered the plaintiff has appealed to this court.

BARKER & SHACKELFORD and JOHN M. BARKER, for the appellant.

I. The court erred in refusing the plaintiff's first instruction to direct a verdict for plaintiff, because there was no disputed fact in the evidence, and it was a simple question of law as to where the verdict should be lodged. There was not a particle of evidence to establish the plea of payment. Smith v. Railroad, 37 Mo. 287; Hanrahan v. The People, 91 Ill. 142.

II. The court erred in giving the instruction for the defendant because it assumed that a binding contract had been made in relation to the land. Peck v. Ritchie, 66 Mo. 114; Life Ins. Co., 94 U. S. Rep. 610; 52 Ala. 395; 44 Ill. 355; Snyder v. State, 59 Ind. 105. It is a comment on the evidence, and it directed the jury to find a verdict for defendant whether he had complied with his part of the contract or not, or whether he had any excuse for non-compliance. Jones v. Jones, 57 Mo. 138; Califf v. Thompson, 81 Ill. 478; W. F. I. Co. v Earle, 33 Mich. 143.

III. The court erred in overruling plaintiff's motion for new trial, and in giving judgment for defendant, because there was no evidence to sustain the plea of payment. Rev. Stat. 1879, sect. 2513.

IV. When there is no doubt about the verdict being against the evidence, the Supreme Court has in some instances reversed for that reason. Whitsett v. Ransom, 79 Mo. 258; Garrett v. Greenwell, Adm'r, 92 Mo. 120.

SOL. HUGHLETT, for the respondent.

I. There was no dispute as to the contract between plaintiff and defendant about the land trade. They both testified that the price agreed on was twenty-five dollars per acre; and that plaintiff paid two dollars cash; and that it was agreed between them that the amount which plaintiff had paid defendant on the former trade was to be considered and taken in part payment, and they agreed that after deducting the two dollars cash, and the amount formerly paid on the land, and for hay, there was still due defendant $3,303. The note for ninety dollars was given in consideration of the amount paid by plaintiff to defendant on the first trade, and in the last trade it was agreed that this note should be cancelled, and the consideration for which it was given, stand as a part payment of the price agreed on in the last contract. The testimony of defendant on this point is that after they had agreed on the terms, plaintiff said, " now your ninety-dollar note is paid off," and the...