"This is a suit on a promissory note for $3,200, given by the defendant and his brother, Thomas J. Randolph, to the plaintiff. The note is dated May 11, 1806, is due on or before March 16, 1897, and bears 8 per cent. compound interest from date. There is a credit on the note of May 17, 1897, of $685.50, proceeds of foreclosure of deed of trust securing collateral note. Judgment is prayed for the balance of the note and interest. The petition was filed in the Linn circuit court at Linneus, April 13, 1905. The suit was at the succeeding December term transferred by stipulation to Brookfield.
"The second amended answer, filed at the February term, 1906, admits the execution of the note but denies generally the other allegations of the petition. It also contains a special plea setting up as a defense and counterclaim substantially this same state of facts; that the $3,200 note was given for a balance due plaintiff on a stock of goods bought of it; that this stock was traded by defendant to one Hart for 340 acres of land in Carroll county, Mo.; that Hart made the deed to defendant, and gave his brother, Thomas, his note for $6,000 secured by deed of trust on the land; that plaintiff was to take the $6,000 note and deed of trust as collateral security, and that defendant was to deliver to plaintiff possession of the land the 1st of March, 1897; that it was agreed
that plaintiff should sell the land and pay off the first deed of trust for $5,000 and accrued interest, the $3,200 note and the reasonable expenses of sale; that the payors in the $3,200 note should be bound no further than the amount realized exceeded the aggregate amount of the two notes and expenses; the surplus together with the rents and profits of the land, was to be accounted for to defendant; that this agreement was fully carried out on defendant's part. It is further alleged that plaintiff, with intent to defraud defendant out of his equity in the land, on the maturing of the $3,200 note, foreclosed the $6,000 deed of trust, causing the land to be sold by the sheriff, without notice to Wren, the trustee, on May 17, 1897, at which sale the defendant did not appear as a bidder, relying on the agreement of plaintiff; that at the sale the land was bought by plaintiff for $725 subject to the prior deed of trust, and net proceeds of sale, $685.50, credited on the note; that at the time of the trustee's sale the land was reasonably worth $17,000, and that plaintiff should account to defendant for $8,544; that plaintiff held the land for several years receiving rent to the total amount of $500, and then sold the land for $8,443, and that plaintiff should also account for these moneys. The answer concluded with praying for an accounting, the appointment of a referee, if necessary, etc.
"The replication filed on the hearing before me admits the receipt on May 11, 1896, of the $6,000 note and deed of trust as collateral security for the note sued on, the foreclosure under that deed of trust, and the purchase at said sale of the land by the plaintiff, subject to the $5,000 deed of trust, and denies generally all other allegations of new matter set up on the answer.
"I find the facts in the case to be as follows: So far as the evidence discloses, the business relations between the parties to this suit began in 1895. In that year the plaintiff sold or traded to defendant a stock of goods valued at over $18,000 for land valued at about $10,000. For the difference the defendant gave plaintiff his notes. In February, 1896, the defendant traded his stock of goods to one Hart for 340 acres of land in Carroll county, Mo. The deed from Hart for the land bears date of February 24, 1896, was filed for record March 16, 1896, conveys the land for an express consideration of $17,000, and is subject to a deed of trust to one Timmons for $5,000, due November 25, 1899, which the grantee assumes and agrees to pay as part consideration for the land. Thomas J. Randolph, now deceased, was a brother of the defendant, had an interest in the store, and, after the trade, an interest in the land. A settlement took place between him and the defendant, and on March 16, 1896, the defendant gave his brother his note for $6,000, due one year after date, with 8 per cent. compound interest from date, and to secure it gave a second deed of trust on the land. This deed of trust was filed for record April 6, 1896. A dispute arose between plaintiff and defendant over the notes given in 1896, and finally the plaintiff brought suit in the Linn circuit court on them, but, before trial, the plaintiff, through its agent and employé, John P. Hanna, adjusted the difference between it and the defendant, and the defendant gave the company his note for $3,200 in full settlement. This is the note sued on. It is dated May 11, 1896, is due on or before March 16, 1897, the date of the maturity of the $6,000 note, and bears 8 per cent. compound interest from date. It is also signed by his brother, T. J. Randolph.
"How long it took to adjust...
