Skinner v. Johnson

• Decision Date: 24 August 1934
• Docket Number: No. 5211.,5211.
• Citation: 74 S.W.2d 71
• Parties: SKINNER v. JOHNSON et al.
• Court: Missouri Court of Appeals

74 S.W.2d 71

SKINNER v. JOHNSON et al.

No. 5211.

Springfield Court of Appeals. Missouri.

August 24, 1934.

Appeal from Circuit Court, Lawrence County; Emory E. Smith, Judge.

"Not to be published in State Reports."

Action by William B. Skinner against J. M. Johnson and another. From a judgment affirming a judgment of a justice of the peace for the defendants, the plaintiff appeals.

Reversed and remanded, with directions.

Robert Stemmons, of Mt. Vernon, for appellant.

ALLEN, Presiding Judge.

This action, commenced before a justice of the peace in Lawrence county, Mo., on December 6, 1930, is based on a promissory note, which in substance, is as follows:

"Forty-two months after date, we, each as principal, promise to pay to W. B. Skinner, or order, One Hundred and Twelve Dollars, for value received, negotiable without defalcation or discount at the Mount Vernon Bank in Mount Vernon, Mo., and with interest from maturity at the rate of 8 per cent per annum, and if the interest be not paid annually, to become principal and bear the same rate of interest. * * *

                        "[Signed]      Frederick L. Judy
                                       "J. M. Johnson
                                       "Mollie Johnson."
                

In the justice court defendants J. M. and Mollie Johnson filed an answer, as follows: "Defendants admit that they together with Frederick L. Judy made the note in question to plaintiff for his commission on the sale of forty acres of land, that the said Frederick L. Judy paid the plaintiff one hundred and twelve dollars through the Farmers Mutual Insurance Company, of Lawrence County, Missouri, on or about the 12th day of November, 1924, as full satisfaction of said note, and that defendants thereafter demanded their note of plaintiff and that plaintiff refused to deliver same to them, telling them that their note was lost."

The jury found for defendants, and plaintiff appealed to the circuit court of Lawrence county, where a verdict was again found for defendants, from which plaintiff appeals to this court.

The facts, as shown by the evidence, are that on January 25, 1923, defendants, James M. Johnson and Mollie Johnson, his wife, became the owners of the E. ½ of lot 1, of the N. E. ¼ of section 6, township 28, range 25, in Lawrence county, Mo. The Johnsons then conveyed the same to Frederick L. Judy. On November 8, 1923, Judy executed his deed of trust, conveying said land to plaintiff, Skinner, as trustee to secure the payment of Judy's note of the same date, in the sum of $800, payable to the order of Lucy B. Noble, and on the same day Judy also executed a second deed of trust, conveying the same land to Mollie Johnson, as beneficiary, and third party, subject to the prior deed of trust, securing the payment of the $800 note to Lucy B. Noble.

The second deed of trust recited:

"That whereas, Frederick L. Judy, first party, has made to the said third party his certain note, by which he promises to pay said Mollie Johnson One Hundred Fifty Dollars, due in one year, with interest at eight per cent, and has also executed to W. B. Skinner a note of even date, for One Hundred Twelve Dollars, due forty-two months after date, with interest from maturity, at the rate of eight per cent. The former note signed by Frederick L. Judy, and the latter signed by Frederick L. Judy, J. M. Johnson and Mollie Johnson.

"This conveyance is made for the purpose of indemnifying said party of the third part harmless from having signed said note given to W. B. Skinner, as security as well as for security for the note given party of the third part."

On December 3, 1923, the Farmers' Mutual Insurance Company of Lawrence County, Mo., issued its policy of fire insurance to Judy, in the sum of not exceeding $2,000, insuring the property of said Judy on said land, in part, as follows:

The dwelling house for $500, and contents therein $450, the well house for $35, smokehouse for $150, and reciting other items relating to the real estate, and also other numerous items of personal property.

The first paragraph of said policy is as follows: "In Consideration of the Agreements contained in the application for membership in this Company, and upon which this policy is issued, all of which are made warranties in said application, and relied upon as such by this Company, and in further consideration that said application, warranties, the constitution, by-laws of this Company and this policy shall constitute the contract between this Company and the insured, and in further consideration of the agreements herein contained, Does Insure, Frederick L. Judy, * * * to an amount not exceeding the sum of $2,000.00 against all direct loss or damage, as provided in this contract, caused by fire or lightning, to the following described property. * * *" And thereafter describing the property hereinbefore mentioned, together with other personal property.

In connection with said policy, appellant further offered in evidence a part of article 11 of the by-laws...