Shantz v. Shriner
| Decision Date | 08 October 1912 |
| Citation | 150 S.W. 727,167 Mo.App. 635 |
| Parties | I. W. SHANTZ, Respondent v. ETTA V. SHRINER et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. G. A. Wurdeman Judge.
REVEVRSED AND REMANDED.
Judgment reversed and cause remanded.
George B. Webster, for appellants.
(1) The trial court erred in admitting in evidence over the defendants' objection the notes of $ 1100 and $ 44 because they were not the notes described in the petition. It amounted to a failure of proof and not a mere variance. Marcum v. Smith, 26 Mo.App. 460; Halpin M. Co v. School Dist., 54 Mo.App. 371; Gray v. Race, 51 Mo.App. 553; Ringer v. Holtzclaw, 112 Mo. 519. (2) The amended answer tendered equitable issues and the action was thereby converted into a proceeding in equity. Pitts v. Pitts, 201 Mo. 356; Bouton v. Pippin, 192 Mo. 469; Swan v. Stevens, 143 Mo. 384; Shaffer v. Detic, 191 Mo. 388; Wendover v. Baker, 121 Mo. 273. While the trial court's findings in equity are generally deferred to, they are not binding upon the appellate court, and they will be reviewed whenever the record justifies it. Mellier v. Bartlett, 106 Mo. 381; Baker v. Satterfield, 43 Mo.App. 591; Jolly v. Huebler, 132 Mo.App. 675. (3) The circuit court erred in excluding the testimony touching the purpose for which the chattel mortgage and notes sued on were given--to the effect that they were given merely as additional security for the amounts advanced by the plaintiff to protect the defendants' property and covered by the third deed of trust in the same sum. Parol evidence as to the consideration for a written agreement is admissible. Sec. 1974, R. S. Mo. 1909; 4 Wigmore Ev., sec. 2433; Holmes v. Farris, 97 Mo.App. 305; Garr v. Hill, 113 Mo.App. 10; Taylor v. Crockett, 123 Mo. 300; Wood v. Broadley, 76 Mo. 23; Lowrey v. Downey, 150 Ind. 364; Cardinal v. Hadley, 158 Mass. 352.
Geo. W. Wadlow for respondent.
(1) Parole evidence is inadmissible to contradict, add to, subtract from, control or vary a written instrument. Tracy v. The Union Works Co., 104 Mo. 193; Construction Co. v. Tie Co., 185 Mo. 61; Miller v. The Municipal E. L. H. & P. Co., 133 Mo. 220; Boyd v. Paul, 125 Mo. 13; Kessler v. Clayes, 147 Mo.App. 94; Lewis v. Muse, 130 Mo.App. 194. (2) The Court of Appeals will not review errors committed in the trial of a case where the errors were not called to the attention of the trial judge, by a motion for a new trial, or in arrest, and an opportunity given to the trial judge to again consider his ruling. Pogue v. State, 13 Mo. 444; Warner v. Morin, 13 Mo. 455; Banks v. Lades, 39 Mo. 406; McIntire v. McIntire, 80 Mo. 473; City of St. Louis v. Brooks, 107 Mo. 383; Lillie v. Menke, 126 Mo. 228; Danforth v. Railway Co., 123 Mo. 198. (3) Errors committed in the trial of a case should be called to the attention of the trial judge in a motion for a new trial. Bischop v. Ransom, 39 Mo. 416; Lillie v. Menke, 126 Mo. 228. (4) Those errors only can be considered, that are raised on the record proper, by a motion in arrest. Case v. Fogg, 46 Mo. 47; Hurt v. King, 24 Mo.App. 593; Lillie v. Menke, 126 Mo. 228. (5) An express trust to purchase real estate must be in writing. Sec. 2868, R. S. 1909; Hammond's Admrx. v. Cadwallader, 29 Mo. 166; Hillman v. Allen, 145 Mo. 638. (6) A resulting trust in land must be proven by evidence so clear, positive, unequivocal and convincing as to leave no reasonable doubt in the mind of the chancellor. Sec 2869, R. S. 1909; Johnson v. Quareles, 46 Mo. 423; Adams v. Burnes, 96 Mo. 361; Allen v. Logan, 96 Mo. 591; Burdett v. May, 100 Mo. 13; King v. Issley, 116 Mo. 155; Brinkman v. Sunken, 174 Mo. 709; Reed v. Sperry, 193 Mo. 174.
CAULFIELD, J. Nortoni, J., not sitting. REYNOLDS, P. J., concurring.
--Action of replevin to recover possession, after conditions broken, of certain household furniture covered by a chattel mortgage, the plaintiff claiming as endorsee of the notes alleged to be secured by the mortgage. The plaintiff had judgment for the possession of the property or its value, $ 1182.15, with one cent damages, and costs, and the defendants have appealed.
It is conceded that not only did defendants execute and deliver said chattel mortgage but they also executed and delivered a deed of trust in the nature of a mortgage conveying defendants' home as security for the same notes. The defendants set up in their answer as a defense, and endeavored and offered to prove at the trial, that the only primary or permanent security for said notes was said deed of trust upon the real estate, the same being and intended to be a third deed of trust--that is, subject to a first deed of trust for $ 5000 and a second for $ 3000--and that the chattel mortgage was given tentatively or temporarily, under an agreement between plaintiff and defendants that if, upon examination of the title to said real estate, the same should be found to be good and free from any incumbrances other than the first and second mortgages, the chattel mortgage would be cancelled and held for naught; that upon examination of the title to said real estate the same was found to be good, save as aforesaid, and the plaintiff became bound to cancel said chattel mortgage.
It developing at the trial, however, that such agreement was not in writing but rested in parol, and had been made prior to, or contemporaneously with, the execution and delivery of said chattel mortgage, the trial court rejected all such proof and struck out such defense from the answer on the ground that it was an improper attempt to impeach the written contract between the parties. The defendants duly excepted and assign such rejection of proof as reversible error. The assignment must be sustained, for the trial court clearly erred.
Parol evidence is admissible to show the purpose for which a mortgage was executed. [Jones on Chattel Mortgages, sec. 90.] Thus, it was held that it might be shown by parol evidence that a mortgage appearing on its face to secure an absolute debt was in fact given to secure a contingent liability of the mortgagee as the mortgagor's surety to an amount not greater than said debt. [Sparks v. Brown, 33 Mo.App. 505; Williams v. Alnutt, 72 Mo.App. 62.] The purpose with which the mortgage is given goes to the consideration, and the consideration mentioned in the mortgage is only prima facie evidence of the consideration and may be explained by parol evidence. [Williams v. Alnutt, 72 Mo.App. 62.]
But plaintiff contends that the judgment should not be reversed on account of the error "because undisputed evidence shows that there was a fourth deed of trust and two judgments, one amounting to $ 1800, in addition to the liens that the appellants claim were against the property." The weakness of this contention lies in the fact that such evidence consists of the plaintiff's testimony alone and it is fair to conclude that it is "undisputed" only because the trial court's ruling and order forbade defendants' disputing it and struck out the defense, which would make such evidence relevant. That defendants' counsel considered such ruling final and binding on him is shown by his attitude thereafter in cautioning his witness not to volunteer testimony contrary to it.
As a further defense defendants alleged in substance that about a year after the chattel mortgage was given, the real estate was sold by the trustee under the second deed of trust and the plaintiff bought it in, having first agreed, however, with the defendants that he would buy it in, and hold and dispose of it as trustee for himself and for them; that subsequently he sold it for a price more than sufficient to satisfy all liens on the property and repay all plaintiff's loans and advancements, including that claimed to be secured by the chattel mortgage. It is sufficient to say of this that the evidence for and against this defense consisted entirely of parol testimony, was very conflicting but strongly tends to support the finding. Under these circumstances such finding will not be reversed even if, as defendants' counsel asserts, the answer "tendered equitable issues and the action was thereby converted into a proceeding in equity."
The petition described the notes secured by the chattel mortgage as being one note for $ 1055, payable twelve months after date, and two notes each for $ 42.65, payable six and twelve months after date. Upon the trial, however, the plaintiff offered in evidence one note for eleven hundred dollars payable twelve months after date with a credit for forty-five dollars indorsed thereon and two notes each for forty-four dollars payable six and twelve months after date, with a credit on each of them of $ 1.35. Defendants objected to the admission of said notes in evidence saying they were not the notes described in the petition, and assign as error the action of the trial court in overruling such objection. They now assert that "it amounted to a failure of proof and not a mere variance." The point might be ruled against the defendants for the sole reason that it was not urged in the motion for new trial, either that the court erred in...
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