Shull & Chipps Abstract Company v. Schneider

• Citation: 258 S.W. 449,215 Mo.App. 595
• Parties: SHULL & CHIPPS ABSTRACT COMPANY, Respondent, v. J. G. SCHNEIDER, Appellant
• Decision Date: 05 November 1923
• Court: Court of Appeals of Kansas

258 S.W. 449

215 Mo.App. 595

SHULL & CHIPPS ABSTRACT COMPANY, Respondent, v. J. G. SCHNEIDER, Appellant

Court of Appeals of Missouri, Kansas City

November 5, 1923

Appeal from Circuit Court of Buchanan County.--Hon. Thos. B. Allen Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Shull & Shull for respondent.

Strop & Silver and Chas. H. Mayer for appellant.

OPINION

ARNOLD, J.

This is a suit on a contract whereby plaintiff seeks to recover from defendant damages in the sum of $ 850 and interest. The petition is in two counts, the first, after alleging the corporate existence of plaintiff, states that in December 1917, one Ada Gurwell was the owner of certain real estate in the city of St. Joseph, Mo., and that defendant had loaned her a certain sum of money, and as security therefor had accepted a deed of trust on said real estate and as additional security the owner had assigned to defendant a certain policy of fire insurance covering the house situated on said real estate; that thereafter the building so insured was damaged by fire in the sum of $ 850. That at the time of said fire plaintiff was the agent of the issuing insurance company and a draft for $ 850 to cover the amount of damage agreed upon was sent to plaintiff for delivery to defendant Ada H. Gurwell and one M. M. Turner--all having been named as payees in the draft. Further it is alleged that plaintiff held a second deed of trust on said house to secure a loan which had been made by plaintiff, but the note evidencing said indebtedness was made payable to the said M. M. Turner; that pending settlement of the insurance, the house had been repaired and that after said draft had been received by plaintiff, a contract was entered into between plaintiff and defendant by which it was agreed that if plaintiff would pay the balance due for said repairs and furnish a bond to protect said real estate against any liens of materialmen, contractors and laborers, defendant would endorse said draft to plaintiff; that plaintiff paid for said repairs and tendered to defendant said bond, but that defendant failed and refused to endorse said draft and plaintiff was unable to collect the $ 850.

The second count is the same as the first, except that it states the contract with defendant was made between defendant and Shull & Chipps, a partnership composed of A. P. Shull and Scott Chipps; that said partnership had paid the balance due for said repairs and tendered bond to defendant, and that said partnership had assigned to plaintiff herein all rights of said partnership against defendant arising out of the alleged breach of contract by defendant.

The answer was a general denial. Under the pleadings thus made the cause went to trial to a jury. The verdict was for plaintiff on the first count in the sum of $ 850 and interest from April 29, 1917, at six per cent. making a total of $ 1133.19. The jury found for defendant on the second count. A motion for a new trial filed by defendant was overruled and judgment was entered in accordance with the verdict. Defendant appeals.

It is first charged in support of the appeal that the court erred in giving instruction No. 2 for plaintiff, which purported to cover the entire case and directed a verdict. The principal charge against this instruction is that it assumed as a fact a point in dispute, to-wit, that plaintiff and defendant had entered into the contract sued on, as alleged in the petition. The part of the instruction of which this complaint is made reads:

"That thereupon an agreement was made between plaintiff and defendant that plaintiff should have a bond executed by said Gurwell with A. P. Shull and Scott Chipps as sureties indemnifying defendant against loss by reason of liens that might be existing in favor of laborers or materialmen, and that then plaintiff should pay the sums demanded as aforesaid and that the plaintiff should thereafter present said draft to the defendant and the defendant would indorse same over to plaintiff. That said bond was prepared and executed as agreed on--that plaintiff did pay said monies demanded--that said draft was presented to defendant and he refused to indorse...