APPEAL
from Livingston Circuit Court, HON. JAMES M. DAVIS, Judge.
Reversed and remanded.
Statement
of case by the court.
This is
a suit on a note brought in the Livingston circuit court and
tried upon plaintiff's first amended petition, as
follows:
" Plaintiff for his first amended petition in this cause
states that defendants, George Thurston, under the name of G
Thurston, Francis E. Coffee, under the name of F. E. Coffee
Reuben T. Miller, under the name of R. T. Miller, Andrew W
Kapp, under the name of A. W. Kapp, Stephen W. Baugh, under
the name of S.W. Baugh, James S. Stevens, under the name of
Jas. S. Stevens, Andrew Y. Swope, under the name of A. Y
Swope, Jacob E. Riley, under the name of J. E. Riley, James
W. Maberry, under the name of J. W. Maberry, Samuel H.
Skinner, under the name of S. H. Skinner, William L. K. Meek,
under the name of W. L. K. Meek, Thomas B. France, under the
name of T. B. France, and Silas H. Bagley, under the name of
Silas H. Bagley, by their promissory note filed with the
original petition in this cause, dated on the fifteenth day
of April, 1881, for value received, promise to pay plaintiff
the sum of three hundred and sixty-six dollars and sixty-six
cents ($366 66/100), eleven months after the date thereof,
with ten per cent. interest thereon from date, payable in
eleven monthly instalments on the fifteenth day of each
month, the first paymet to be made on the fifteenth day of
May, 1881. That defendants on the fifteenth day of May, 1881,
paid $36 38/100 on said note, and on the fifteenth day of
June, 1881, paid $36 10/100, and on the fifteenth day of
July, 1881, paid $35 80/100. Which payments have been entered
as credits on said note. That each and all of the remaining
payments are now due and unpaid, for which plaintiff prays
judgment together with his interest due thereon and costs of
suit."
Defendant's
second amended answer, upon which said cause was tried, is as
follows:
" All the defendants, except George Thurston, who is not
joined therein, for their second amended answer to the
amended petition of plaintiff herein, say that in the note
filed by plaintiff and sued upon herein, the said George
Thurston was and is the principal, and that all these
defendants answering herein were his sureties to plaintiff,
and that plaintiff at the time of the delivery of said note
well knew of this relation. That the consideration of said
note has wholly failed in this, to-wit: that it was given to
plaintiff as the consideration of a lease by him to said
George Thurston, of a certain steam grist mill and
appurtenances, situate on block number five in the town of
Avalon, in Livingston county, state of Missouri, for the term
of one year ending on the fifteenth day of April, 1882. That
the rent of said mill was fully paid by said Thurston, to
plaintiff up to August 20, 1881, but that plaintiff on August
6, 1881, entered into and upon the said mill property said
demised as aforesaid to said George Thurston and ejected,
expelled, put out, and amoved him from possession thereof,
and has wholly kept and continued him ejected, expelled, put
out, and amoved from the possession of demised mill property
up to the present time; which eviction defendants herein
plead and aver that the same constitutes a failure in law and
in fact of the consideration of the entire balance due upon
the note sued upon."
And
for second defence these defendants answering therein say:
" That in said note George Thurston, who does not answer
herein, was and is the principal, and that all the defendants
herein were and are only his sureties. That the plaintiff at
the time of accepting and taking said note well knew of this
relation between the said Thurston and these defendants. That
plaintiff was the owner of a steam grist mill located upon
block number five in the town of Avalon, in Livingston
county, state of Missouri. That said mill was lying idle, to
the great detriment of the business of said town. That these
defendants were all either citizens of Avalon or interested
pecuniarily in its prosperity, and were and are solvent. That
said Thurston was insolvent, and the plaintiff would not and
did not rent said mill, without surety, to said Thurston,
which plaintiff did by a written lease for one year, from
April 15, 1881, to April 15, 1882. That said Thurston paid
him one month's rent cash in advance, and gave the note
sued upon with these defendants as his sureties for the
balance of the rent, to-wit: for $366.66. That afterwards,
to-wit, on August 6, 1881, plaintiff obtained from the judge
of this court on his petition therefor, a temporary
injunction restraining said Thurston from using and running
said mill. That at said date the rent for said mill was fully
paid up and discharged. That said injunction upon the part of
plaintiff was malicious and vexatious and without just cause,
in fact. That said Thurston was possessed in law and in fact
of a good defence to the same, and that he filed his answer
to said petition for an injunction and asked that the same
might be dissolved and the petition dismissed. That none of
the defendants herein were parties or made so to said
injunction, but these defendants charge and aver the fact to
be that plaintiff, after the filing of the answer of said
Thurston, well knowing that he could not maintain his cause
of action and have his temporary injunction made final if the
same was fought in good faith by said Thurston, proposed to,
and conspired and collogued with him, the said Thurston, and
for the purpose of cheating and defrauding these defendants,
the sureties as aforesaid of said Thurston, that if he, the
said Thurston, would withdraw his answer in the said
injunction case and permit him, plaintiff, to have his
temporary injunction restraining said Thurston from running
and using said mill, made final in the case, he would pay
him, Thurston, the sum of one hundred dollars. That said
Thurston accepted plaintiff's proposal and did withdraw
his answer, and thereupon plaintiff paid said Thurston the
one hundred dollars, and procured this court to make said
temporary injunction final. That said Thurston left this part
of the country and plaintiff thereupon filed this suit and
seeks to make these defendants liable upon said note.
Defendants say, that by reason of the collusion and fraud
between their principal, the said Thurston and plaintiff as
herein set forth, they are released from all obligation and
legal liability thereon; and that to hold them responsible to
plaintiff after his collusion with their principal, would be
to make them victims of plaintiff's fraud and chicanery
as herein set forth, and ask to be discharged."
Now
comes the plaintiff and for his reply to the second amended
answer of defendants: Denies each and every allegation in the
first count thereof. Denies each and every allegation in the
second count thereof.
On
April 15, 1881, plaintiff leased by written lease the "
Avalon Mills" in Livingston county, to Thurston, for the
year ending April 15, 1882, for $400.00 payable monthly, the
first month being paid in advance, and the note in suit, with
defendants as sureties, being given to plaintiff for the
balance. On August 6, 1881, the plaintiff, by bill
temporarily enjoined Thurston from operating the mill. This
injunction was made perpetual at the following September term
of the circuit court. Thurston having withdrawn his answer,
permitted the injunction to be made perpetual without
resistance. The rent was paid up to August 20, 1881. The
evidence tended to show that plaintiff asked several of the
defendants to assist him in obtaining possession of the mill
from Thurston. That Thurston did not run the mill after the
service of the temporary injunction on August 6, 1881.
Defendant's evidence further tended to show that
plaintiff paid Thurston $100.00 to withdraw his answer and
let judgment go by default, making the injunction perpetual
and to surrender up possession of the mill.
The
court gave for plaintiff the following instruction:
" The court instructs the jury that under the pleadings
and evidence in this case, they will find for plaintiff on
said note for the amount which would be due the plaintiff
from the twentieth day of August, 1881, to the first day of
February, 1882, with ten per cent. interest thereon."
The
defendants then asked the following instructions all of which
were refused, except the first, which was given.
"
1. The court instructs the jury that in all cases of leasing
of property, the quiet enjoyment of the leased or rented
premises without any molestation on the part of the landlord
is an implied condition on which the tenant is only bound to
pay the rent."
"
2. The court instructs the jury that if they shall believe
from the evidence that these defendants stand, upon the note
sued upon, in the relation of sureties for one George
Thurston, who is not sued herein and that such relation was
known to plaintiff, and shall further believe that the note
sued upon was given as part consideration of the renting of a
steam mill in Avalon, Missouri, to said Thurston by
plaintiff, for one year ending April 15, 1882; that on August
6, 1882, plaintiff obtained temporary writ of injunction
against the said Thurston, restraining him from using said
mill; that said Thurston put in an answer to said injunction
and was proceeding to contest said injunction, and fight the
same in due form of law, when an agreement, without the
knowledge or consent of these defendants was made between
plaintiff and said Thurston; that plaintiff would give
Thurston one hundred dollars if he would withdraw his answer
and let plaintiff obtain a...
