St. Louis Union Trust Co. v. Laughlin

• Decision Date: 03 October 1923
• Docket Number: No. 22430.,22430.
• Parties: ST. LOUIS UNION TRUST CO. v. LAUGHLIN
• Court: Missouri Supreme Court

254 S.W. 844

ST. LOUIS UNION TRUST CO. v. LAUGHLIN

No. 22430.

Supreme Court of Missouri, en Banc,

October 3, 1923.

Appeal from Circuit Court, St. Louie County; John W. McElhinney, Judge.

Action by the St. Louis Union Trust Company against Henry D. Laughlin. Judgment for plaintiff. From an order granting a new trial, plaintiff appeals. Affirmed and remanded.

Brvan Williams & Cave, of St. Louis, for appellant.

Thos. B. Harvey and Abbott, Fauntleroy, Cullen & Edwards, all of St. Louis, for respondent.

RAGLAND, J.

This is a suit on a promissory note. It was commenced against one Robert H. Kern, the maker and defendant, as an indorser. Kern died during the pendency of the cause in the court below and the action was thereupon dismissed as to him. Subsequently the cause was proceeded with as against the defendant, Laughlin. Upon a trial to a jury, judgment was rendered in favor of plaintiff for the full amount of the note. On defendant's motion a new trial was granted, on the ground that erroneous instructions on behalf of plaintiff had been given the jury. From the order granting a new trial, plaintiff prosecutes this appeal.

The note in suit was for $5,000; it was dated May 24, 1912, payable August 28, 1912, to the St. Louis Union Trust Company as payee, signed by Kern as maker, and indorsed before delivery by defendant as follows: "Notice of demand and protest waived. Henry D. Laughlin."

With respect to the pleadings upon which the cause was tried, the petition was conventional. The answer was as follows:

"Now comes defendant, Henry D. Laughlin, and for answer to * * * plaintiff's petition, states: That on the 21st day of August, 1908, one R. H. Kern was indebted to the plaintiff in the sum of $6,000, and the said plaintiff held the said Kern's note for said sum, which was duly indorsed by one J. B. Johnson, and that said note, signed by Kern and indorsed by said Johnson, was renewed on the 12th day of January, 1909, and fell due on December 1, 1909. To secure said note, the plaintiff held, as collateral, a deed of trust executed by Catherine and Thomas Reese to David A. Roberts, trustee, for the use of Robert H. Kern, which deed was recorded in Book 168, p. 367, of the Records of Macon county, Mo., and another deed, correcting said deed of trust, was duly recorded in Book 166, p. 421, Records of Macon county, Mo., and by said deeds of trust the following"described land in Macon county, Mo., to wit: The southeast quarter except that part of southwest quarter of southeast quarter south of Old State road, about two acres more or less and northeast quarter of southwest quarter and southeast quarter of northwest quarter of section 25, township 58, range 17, consisting of 238 acres, was incumbered to secure the payment of said note. That the plaintiff, desiring to continue said indebtedness, on or about the 1st day of December, 1909, solicited the defendant, Henry D. Laughlin, for its accommodation, to become indorser on said note in lieu of the said J. B. Johnson, and then and there the note dated January 12, 1909, for $6,000 was taken up and canceled, and a new note, dated December 1, 1909, for $6,000 was made and executed by Robert H. Kern and indorsed by this defendant, Henry D. Laughlin. That on November 30, 1910, said note was reduced to $5,000 by the said Robert H. Kern paying thereon $1,000, and said note was renewed on November 30, 1010, and at divers other times until the note herein sued on in said first count was executed in renewal of the former note, and defendant says that the debt for which said note was given is the same debt (less $1,000, paid) which was evidenced by the dote of R. H. Kern, indorsed by J. B. Johnson, dated August 21, 1908, and payable to plaintiff, and the representations, contracts, and promises of plaintiff hereinafter set forth were made to defendant by plaintiff at the time he indorsed the first note, and at each date when said note was renewed.

"Defendant says that the officers, agents, and representatives of the plaintiff stated and represented to him that it had then, and would keep in its possession, as collateral security, the Reese note and deed of trust above described, and that said note secured by said deed of trust was of greater value than the amount of plaintiff's note, and that at said times also represented and stated to him that they had in their possession a mortgage or deed of trust upon 1.000 acres of land, owned by the said Robert H. Kern, In Macon county, Mo., and that said deed of trust was a junior lien on 1,000 acres, and that the equity in said land so conveyed by said junior deed of trust was of large value, and that the said Robert H. Kern was planning to, and had arranged to, take up the prior deeds of trust then existing on said 1,600 acres of land and to sell about 400 acres of said land and to incumber the remaining 1,200 acres by a first deed of trust for $35,000, and that he (the said Kern) would then give to plaintiff a second deed of trust covering 1,200 acres of said land, which deed of trust would be held as collateral security for the note, and any renewal thereof, which defendant indorsed, and be subject to the prior lien of $35,000 only, and the plaintiff promised and represented, contracted and agreed with defendant that it would see that when the deed of trust on 1,600 acres was released, a new deed of trust covering 1,200 acres, would be given in lieu thereof and held as security for the note sued upon.

"Defendant says that plaintiff, pursuant to said agreement and understanding, did take a deed of trust on 1,175 acres only, of land belonging to the said Kern, but the said deed of trust so taken was not a second deed of trust subject to...