Slover v. Rock
| Citation | 70 S.W. 268,96 Mo.App. 335 |
| Parties | R. J. SLOVER, Respondent, v. JOSHUA ROCK, Appellant |
| Decision Date | 03 November 1902 |
| Court | Court of Appeals of Kansas |
Appeal from Mercer Circuit Court.--Hon. Paris C. Stepp, Judge.
REVERSED.
Judgment reversed.
Platt Hubbell, J. C. Wilson and Alley & Read for appellant.
(1) The unexecuted oral agreement between Slover and Rock is a nullity in law. It constituted no obstacle to Rock's right to enforce his $ 493 note and mortgage. It was an accord, without any satisfaction. Dry Goods Co. v Goss, 65 Mo.App. 59; Vining v. Ins. Co., 89 Mo.App. 315; Wilkerson v. Bruce, 37 Mo.App. 159; Barton Bros. v. Hunter, 59 Mo.App. 618; Shaw v Burton, 5 Mo. 478; Russell v. Lytle, 22 Am Dec. 537; Bank v. DeGrauw, 35 Am. Dec. 569; Hearn v. Kiehl, 80 Am. Dec. 472; Young v. Jones, 18 Am. Rep. 279; 1 Cyc. L. and P., 314, 315, 316; 1 Am. and Eng. Ency. (2 Ed.), 420, 421, 422; 1 Am. Dig. (Cent. Ed.), 510. (2) Even if Slover had owed Rock $ 50 less than the $ 493 note and mortgage, he did not pay it under duress. After taking eight days to consider his course, he paid it rather than invoke the process of the law--paid it as a result of choice, not coercion; paid it with full knowledge of all the facts. Vick v. Shinn, 4 Am. St. Rep. 26, is exactly like this and is decisive. (3) Again, he was not threatened with the loss of his property. Rock only sought to apply the proceeds of the property to a just debt of Slover, and to return the surplus, if any, to Slover. Claflin v. McDonough, 33 Mo. 415; Wolfe v. Marshal, 52 Mo. 170; Niedermeyer v. University, 61 Mo.App. 658; De La Cuesta v. Ins. Co., 9 L. R. A. 635; Hackley v. Headley, 45 Mich. 569; 10 Am. and Eng. Ency. (2 Ed.), 329, note; Buddington v. Mastbrook, 17 Mo.App. 578.
Orton C. Orton, for respondent.
--This suit was begun before a justice of the peace, where it was tried, appeal taken to the circuit court of the county, where on trial anew, plaintiff obtained judgment, from which defendant appealed.
The plaintiff went to trial upon the following amended statement, omitting the caption, viz.: "Comes, now the plaintiff, and for cause of action and amended statement, and says, that Joshua Rock is indebted to plaintiff in the sum of $ 100, money had and received, which is due plaintiff.
"For a second cause of action and account, the plaintiff states that the defendant is indebted to the plaintiff in an account stated, or in amount paid over settlement of a note, in the sum of fifty dollars, amount due of money had and received from plaintiff, which plaintiff was compelled to pay to protect his property."
During the progress of the trial, the plaintiff voluntarily elected to rest his case on said second count. No objection was made to this short, but remarkable statement, wherein the pleader came about as near stating three different causes of action as he did of stating any particular one. A statement of the facts, as shown by the evidence, will, however, disclose the object of plaintiff's suit. On September 27, 1898, the plaintiff executed his note for $ 493, payable to the defendant, to secure which he made a chattel mortgage. As there were prior mortgages on the chattels, at plaintiff's request, defendant went with him and paid, and discharged those mortgages, which in the aggregate consumed the greater part of money borrowed by plaintiff from defendant. There was, however, $ 65.93 left over, which defendant claims he paid to the plaintiff. The note in question, by its terms, became due on September 27, 1899. In December following, plaintiff made a payment of $ 70, which was entered as a credit on said note. In May, 1900, defendant urged plaintiff to either pay the note, or renew it and give additional security. In the latter part of said month, the respective parties met for the purpose of renewing the note and the mortgage, at which time they became involved in a dispute as to the amount of money originally borrowed; plaintiff claiming that he had borrowed only $ 393, $ 100 less than the amount specified in the note and mortgage. The parties, however, agreed that plaintiff should execute a new note and mortgage in place of the originals for a sum less by $ 50, and a place and time was fixed for carrying out this agreement. But this agreement was never carried out, as no new note and mortgage were ever executed. A short time thereafter, defendant sent his agent with a constable to plaintiff, and demanded that he either pay the balance due on said note, or surrender the live stock mentioned in the mortgage. At this time, defendant's agent informed plaintiff he could have a reasonable time to do so, but he must pay the balance of said note, or he would take the live stock mentioned in the mortgage. Plaintiff, then and there, fixed upon a time and place to adjust the matter, at which he appeared, paid off the note, and thereby discharged the mortgage. The case was submitted to the jury, after being instructed by the court, which duly returned a verdict in favor of plaintiff for $ 51.85, the $ 1.85, representing interest on said $ 50.
Instruction No. 1, given at the instance of the plaintiff, fairly illustrates the theory upon which the court tried the cause. It is as follows:
"If the jury believe by a...
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