Stringer v. The Geiser Manufacturing Company, a Corp.
| Decision Date | 19 January 1914 |
| Citation | 162 S.W. 645,177 Mo.App. 234 |
| Parties | G. B. STRINGER, Respondent, v. THE GEISER MANUFACTURING COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Dent County Circuit Court.--Hon. L. B. Woodside, Judge.
Reversed and remanded.
G. C Dalton and A. J. Arthur for appellant.
(1) The fact that defendant who was entitled to judgment on the pleadings, failed to move for judgment before verdict did not affect its right. Agricultural Works v. Creighton, 21 Ore. 495, 28 P. 775; Scheible v. Hart, 12 S.W 628; Shirts v. Irons, 28 Ind. 458; Norton v Norton, 25 S.W. 750; Martindale v. Price, 14 Ind. 115; Gordon v. Roberts, 58 Mo.App. 440. (2) A contract cannot be varied in its terms by a comtemporaneous parol agreement or understanding with such written contract. 1 Greenleaf on Evidence (16 Ed.), sec. 275; Ives v. Bank, 140 Mo.App. 293; Kingman v. Schulenberger, 64 Mo.App. 557; De Witt v. Berry, 134 U.S. 306. (3) Whenever the consideration, of a written instrument goes beyond mere recital and becomes contractual, thereby creating and attesting right, it cannot be varied, by parol testimony. Davis v. Gann, 63 Mo.App. 429 and 430; Patchin v. Pierce, 12 Wed. (N.Y.) 61; Jackson v. Railroad, 54 Mo.App. l. c. 645.
Wm. P. Elmer and J. M. Stephens for respondent.
(1) Where a case is tried on the theory that a reply has been filed denying new matter in the answer, failure to file the reply cannot be objected to after the verdict. Roden v. Helms, 192 Mo. 70; Roden v. Helms, 90 S.W. 801. (2) Any material alteration of a contract voids it. Testimony showing such alteration is not objectionable on the grounds it varies the written contract. Coombs v. Car Co., 101 S.W. 58; Barnes-Smith Co. v. Tate, 137 S.W. 621; Kelly v. Thuey, 143 Mo. 422; Wagon Co. v. Wooldridge, 98 Mo.App. 648.
OPINION
The plaintiff sued defendant for twenty-five hundred dollars and recovered judgment for fifteen hundred dollars for an alleged conversion by defendant of a steam traction engine, a threshing separator, a sawmill, saw, belts, etc., the property of plaintiff. The answer of defendant while denying that the taking by it of such property amounted to a conversion admits that it took the property from plaintiff and sold it to other parties and justifies its action in so doing by alleging that it held a valid deed of trust (generally referred to as a mortgage), with power of sale on such property, given by former owners of the same to secure certain notes executed by such former owners and which at the time of the taking and alleged conversion were past due and unpaid. The answer also alleges the foreclosure by defendant of this mortgage and the sale of the property by the trustee therein named in accordance with its terms and that the taking by defendant of plaintiff's property was rightful under and by reason of this foreclosure. No reply was filed to this answer. The defendant, however, went to trial without objection or moving for judgment on the pleadings for want of a reply; and plaintiff is correct in saying that it was too late after trial for defendant to take advantage of this default to the extent of demanding judgment on the ground that the affirmative defenses set up in the answer stood confessed. [Roden v. Helm, 191 Mo. 71, 83, 90 S.W. 798.]
We know of no case, however, going further than to hold that the case will be tried on appeal as if a reply was filed "putting in issue" the affirmative defenses contained in the answer, i. e., "denying the new matter in the answer." [Thompson v. Wooldridge, 102 Mo. 505, 510, 15 S.W. 76; Heath v. Goslin, 80 Mo. 310, 318; Ferguson v. Davidson, 147 Mo. 664, 670, 49 S.W. 859.] It cannot be said that the failure to reply raises any new and affirmative defenses to the defenses alleged in the answer, such as the payment of the debt secured by the mortgage or that the execution of the same was procured by fraud or mistake, or that such mortgage was altered by defendant after its execution. Such matters constitute affirmative defenses and if plaintiff intended to take advantage of same they must be pleaded either in the petition (anticipating defendant's defense). [Courtney v. Blackwell, 150 Mo. 245, 51 S.W. 668, or by way of reply, Koons v. St. Louis Car Co., 203 Mo. 227, 256, 101 S.W. 49; England v. Denham, 93 Mo.App. 13, 19; Zellar v. Ranson, 140 Mo.App. 220, 231, 123 S.W. 1016; Bank v. Nickell, 34 Mo.App. 295, 298; Wilkerson v. Farnham, 82 Mo. 672; Henderson v. Davis, 74 Mo.App. 1; La Belle Sav. Bank v. Taylor, 69 Mo.App. 99, 106; Kelerher v. Henderson, 203 Mo. 498, 512, 101 S.W. 1083.]
It is therefore apparent that no issue was raised by the pleadings even when aided by the fact of going to trial without a reply, except the issues raised by a denial of the allegations of the answer as to defendant taking and selling this property under and by virtue of the mortgage pleaded. We are, of course, here speaking of the effect on the pleadings of going to trial without objection for want of any reply and not of the effect of admitting evidence without objection as to an affirmative defense not pleaded, presently to be discussed.
Under these narrow issues the evidence shows that the trustee in this chattel deed of trust, at defendant's request, took this property from plaintiff and advertised and sold it, thereby depriving plaintiff of the same. It was also shown that defendant had sold the property in question to one Cook in the first instance and that B. B. Hubbs and W. N. Asbridge, former owners of the same by purchase from Cook, executed the deed of trust in question on said property to secure the notes given for the purchase price. The deed of trust was at once placed on record in Dent county, Missouri, where the mortgagors lived and the property was then and thereafter kept and used. Plaintiff some time later bought the property from said Hubbs and Asbridge and paid for it, as he admits, by assuming the mortgage indebtedness against it. Plaintiff admits that he knew the property was mortgaged but said he did not know, or bother himself to go to the records to see, the amount against it. On this phase of the case, however, the trial court correctly instructed the jury that even if Hubbs and Asbridge on selling the property to plaintiff represented that there was only about $ 950 against it, such representation would in no wise bind the defendant, as holder of the mortgage indebtedness, since such mortgage was on record and was notice to all the world as to the amount of the notes secured by the same.
The defendant read in evidence its mortgage and the execution of the same by Hubbs and Asbridge was shown and admitted, except said parties undertook to claim that this mortgage had been changed after its execution by them and that when executed it did not contain or secure the first four notes of $ 275 each, of date June 3, 1907, as described therein. This deed of trust, dated September 9, 1907, recites: "Whereas, the said party of the first part (Hubbs and Asbridge) is indebted to said party of the third part (defendant) as evidenced by the following promissory notes, towit. . . ." Here follows a description by date, amount, when due, etc., of twelve separate promissory notes aggregating $ 2150, and the mortgage then proceeds: "Now if the above notes shall be well and truly paid according to the tenor and effect thereof, when the same become due and payable after this deed has been recorded by party of the first part, then this instrument shall be void, and the property hereinbefore sold shall be released at the cost of said first party;" and then provides for a sale in case of default in such payment and on several other contingencies therein mentioned.
The first four of said notes so described in and secured by said mortgage are dated June 3, 1907, for $ 275 each, and the dispute herein hinges on these notes. The other eight notes, so secured, are dated September 9, 1907, and are for smaller amounts, aggregating $ 1050. The fact that all the notes are not of the same date is explained by the fact that the first four, aggregating $ 1100, were given in payment of another engine purchased from and mortgaged to defendant, along with the separator and other property, at an earlier date and that this engine proved defective and unsatisfactory and was exchanged for another and larger engine by Hubbs and Asbridge at the date of the execution of the mortgage in question and the other notes. The defendant claims that on the exchange of the old and smaller engine for the larger and new engine, the purchasers, Hubbs and Asbridge, agreed to pay $ 800 additional to the old notes on the engine and $ 250 for a new saw rig, purchased at that time, represented by the new notes made at that date. The plaintiff's claim, supported to some extent by the evidence of Hubbs and Asbridge, is that the notes given for the old engine, separator, etc., and which were secured by a mortgage given at that date on said property, were to be considered paid and the new mortgage then given was only to cover the new notes then executed by them, aggregating $ 1050. It is conceded by both parties that these later notes for $ 1050, dated September 9, 1907, were afterward paid but there is no claim or evidence showing that the four older notes of June 3, 1907, for $ 275 each, were so paid.
As has been shown, the deed of trust recites that the makers are indebted to defendant in the sum of each and all the notes described therein and describes these four notes of June 3 1907, for $ 275 each, with the same particularity as the other notes. There is no claim that this mortgage bears any indications of any alteration or...
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