Stone v. Bennett

• Decision Date: 31 July 1843
• Citation: 8 Mo. 41
• Parties: STONE v. BENNETT
• Court: Missouri Supreme Court

8 Mo. 41

STONE

v.BENNETT

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM BOONE CIRCUIT COURT.

HAYDEN, KIRTLEY and GORDON, for Appellant. 1. That the Circuit Court improperly admitted the agreement offered by Bennett to be read in evidence. under the averments and allegations of plaintiff's declaration. 2 Blacks. Com 379. 2. That the Circuit Court erred in permitting the deed for the right of way, or entrance to Stone's lot, to be read in evidence to the jury. 2 Blacks. Com. 379. 3. That the Circuit Court erred in admitting the evidence given by Guitar, that he had left his lots, east of Stone's uninclosed and open. 4. That the court below improperly refused the instruction's offered by Stone's counsel. 3 Johns. R. 229, Tillotson v. Proctor; 3 Cowen's R. 86, Williams v. Houghtcling; 5 Johns. R. 267. Johnston v. Brannan; 13 Wend. 660, Stephens v. Barringer.

LEONARD, for Appellee. 1. The payment of the thousand dollars, before the maturity of the money bond of the 20th February, 1833, extinguished the annuity of $120 from that period, but did not release the obligors from the payment of so much of the annuity as had already then grown due, and therefore the three first instructions were properly refused. 2. The agreement of the plaintiff and defendant, contained in the article of agreement of February, 1833, are independent of one another, and therefore, even the total omission of the plaintiff to secure the defendant a right of entrance to the back part of the property, would afford no answer to the plaintiff's demand. 3. Admitting, however, that Stone's obligation to pay is dependent on Bennett's agreement to secure the right of way, yet the plaintiff tendered the defendant a reasonable and convenient way, and this was the obligation imposed upon him by his agreement, and therefore the four last instructions were properly rejected. 4. The proof, by Guitar, that he had, at the request of the plaintiff, left an adjoining lot open and uninclosed, was given in support of the averment in the declaration, that defendant had always enjoyed an entrance to the back part of the lot, and although both the averment and the proof may have been immaterial, yet neither can have prejudiced the defendant, and can, therefore, furnish no ground for reversing the judgment.

NAPTON, J.

This was an action of assumpsit, brought by Bennett against Stone, to recover the interest due on a bond given by Stone, which was connected with a written agreement. The agreement was as follows:--“Article of agreement between James H. Bennett, of the first part, and Caleb S. Stone and Caroline Wilson, of the second part, all of the county of Boone, State of Missouri--witnesseth: The said Bennett hereby sells, to the second-mentioned parties, the mercantile house in which C. S. Stone and Nathaniel Wilson are now doing business, in the town of Columbia, situate on lot No. 214, with a front of ground on Broadway street of twenty three feet, running back seventy-one feet, with all the buildings and privileges thereon; and the said Bennett also binds himself to secure to the said parties second-mentioned an entrance to the property back, by an alley of seven feet: for which the said Caleb Stone hereby obligates himself to execute, for himself and the above party, an obligation for one thousand dollars in gold or silver, payable in five years from the 20th February, 1833, and pay the said Bennett one hundred and twenty dollars per year interest on the paper during the time it runs, with the privilege of lifting said obligation at any time prior to its falling due, if he wishes. Now, if the second party shall pay, at any time prior to the falling due of the above named bond, any part of it, they should be exonerated from interest on that part of the one thousand dollars which they may pay, and interest per annum to be calculated on the remainder in the same proportion that one hundred and twenty dollars is to one thousand; the bonds to be passed on the confirmation of the title. Witness our hands and seals, this 20th day of February, 1833.

JAMES H. BENNETT,

CALEB S. STONE.”

The bond executed in pursuance of this agreement, was as follows:

“$1,000. On or before the 20th day of February, 1838, for value received, we, or either of us, promise to pay unto James H. Bennett one thousand dollars; this bond being subject to an agreement made and entered into this day, in relation to a certain house and lot, now occupied by Stone & Wilson as a mercantile house: this the 20th day of February, 1833.

CALEB S. STONE, [Seal.]

CAROLINE WILSON.” [Seal.]

The declaration alleged, that, by the article of agreement, it was agreed, that if the party of the second part should pay any portion of the said one thousand dollars prior to its falling due, then they should be exonerated from paying interest on the part so paid from the time of such payment; it further averred, that on the 20th March, 1839, he, said plaintiff, did offer to convey to Mrs. Wilson and Stone, the right of way agreed for, and tendered them a deed for this purpose, which they declined accepting; which deed he brings into court,...