Thomas v. Boatright

• Decision Date: 04 December 1922
• Docket Number: No. 14546.,14546.
• Parties: THOMAS v. BOATRIGHT.
• Court: Missouri Court of Appeals

245 S.W. 211

211 Mo. App. 413

THOMAS v. BOATRIGHT.

No. 14546.

Kansas City Court of Appeals. Missouri.

December 4, 1922.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

"Not to be officially published."

Action by W. P. Thomas against George Boatright. From a judgment for plaintiff in an insufficient amount, he appeals. Affirmed.

R. M. Reynolds, of Marshall, and Montgomery & Rucker, of Sedalia, for appellant.

Jas. T. Montgomery, of Sedalia, and Wm. Boatright, of Kansas City, for respondent.

BLAND, J.

This is an action on a promissory note in the sum of $504.59, due six months after date, with interest at the rate of 8 per cent. per annum, executed by the defendant and payable to the order of plaintiff. Defendant refused to pay the whole note at maturity, resulting in this suit. Defendant in his answer to plaintiff's petition admitted the execution of the note, but alleged that he was entitled to a credit of $200. The jury returned a verdict in plaintiff's favor in the sum of $443.60, thereby allowing defendant the $200 credit, and plaintiff has appealed.

The sole point raised is that the court erred in refusing to give the peremptory instruction offered by plaintiff at the close of the whole case, directing the jury to find for plaintiff in the full amount of the note, together with interest. The evidence introduced on behalf of the defendant "as contained in the abstract of the bill of exceptions is as follows:

"That for some time plaintiff had been negotiating with defendant, attempting to induce defendant to purchase a Ford touring car. That defendant was willing to purchase said car, provided plaintiff would allow him a credit of $200 on the price of the Ford for the used' Overland car, which defendant owned at the time. That plaintiff had refused to take the Overland car as part payment on a Ford, but on the day in question, to wit, February 24, 1921, plaintiff had driven a new Ford touring car to defendant's farm, and advised defendant that he had sold defendant's Overland car for $200, and was ready to deliver the Ford. The price of the Ford car, with some extra equipment, was $594.59, for which amount defendant executed his note on said date, and delivered his Overland car to plaintiff, and plaintiff delivered the Ford car to defendant. Defendant testified that he gave the note for the full contract price, without deducting the $200, for which he claims he was to have had credit, because plaintiff advised him that he, plaintiff, would like to use the note at the bank, and that before the maturity of the note plaintiff would give defendant a credit on the same for the $200.

"Defendant's version of the transaction, in his own words, is as follows: `So he prepared the note, and when I looked at it, I saw he had not given me credit on the note. I says, Willie, you haven't given me credit for my car;' he says, `No, I haven't, but,' he says, `I'm selling this car on credit, and just as soon as I get the money in, I will credit your note.' And he told me then he was hard up for money; that cars had been coming in on him, and he had not been able to secure the money at the bank and all the money he had received, he had to get it on the outside, and I knew times were hard—we farmers were hard up, and I didn't think there was anything strange about that, so after he Prepared the note I taken it into my hand. Now I says, `Before I sign this note, the understanding is that my car is sold and to be credited on the note;' he says, `That is the understanding.'"

Plaintiff introduced testimony tending to show that defendant had offered to purchase the Ford, provided plaintiff would allow him $200 for defendant's old car. This plaintiff declined to do, but finally defend...