Trimble v. Edwards

• Decision Date: 02 March 1926
• Docket Number: No. 3954.,3954.
• Citation: 281 S.W. 121
• Parties: TRIMBLE v. EDWARDS et al.
• Court: Missouri Court of Appeals

281 S.W. 121

TRIMBLE v. EDWARDS et al.

No. 3954.

Springfield Court of Appeals. Missouri.

March 2, 1926.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by A. T. Trimble against W. S. Edwards and others. From the judgment, defendant William Holloway appeals. Affirmed.

J. M. Haw, of Charleston, for appellant.

Wammack & Welborn, of Bloomfield, for respondent.

BAILEY, J.

Plaintiff sued defendants W. S. Edwards, Frank Ashby, and William Holloway for the balance due on a promissory note, originally secured by a deed of trust on real estate foreclosed prior to the commencement of this action. The trial court directed a verdict for plaintiff against defendants W. S. Edwards and William Holloway, but left to the jury the question of defendant Frank Ashby's liability. The jury accordingly returned a verdict in favor of plaintiff and against defendants Edwards and Holloway in the sum of $3,097.52, but found the issues for defendant Ashby. From the judgment based on this verdict, defendant William Holloway has appealed to this court.

There is no question raised as to the pleadings. The facts adduced show that on the 23d day of May, 1919, defendant W. S. Edwards executed and delivered to plaintiff his promissory note by which he promised to pay plaintiff the sum of $2,300; said note being secured by a deed of trust on certain real estate situate in New Madrid county, Mo., of which defendant was then the owner. This deed of trust was subject to a prior deed of trust securing a note in the sum of $1,000. W. S. Edwards obtained title to this land from A. T. Trimble May 1, 1919. Edwards then conveyed this land to Ashby, subject to both trust deeds. Ashby conveyed to Captoley Richardson, who "assumed the payment of a note for $2,300, payable to W. S. Edwards." Richardson conveyed to Ashby, who also assumed the payment of a $2,300 note payable to W. S. Edwards; (there evidently was no such note) Ashby conveyed to Bond, who assumed the payment of both notes. Bond then conveyed this real estate to defendant William Holloway. This deed was dated May 5, 1920, and recites a consideration of $6,000. Immediately after the description of the real estate, the deed contains the following clause:

"The grantee assumes the payment of two notes now existing as a lien on said property; one of said notes being for $2,300 and one being for $1,000, with interest thereon at the rate of 6 per cent. from date of this deed."

The first deed of trust, securing the $1,000 note, was foreclosed and plaintiff became the purchaser thereof. A small surplus from the purchase price was credited on the $2,300 note. All the deeds, deeds of trust, and notes above referred to were introduced as evidence in the case. Plaintiff testified that no part of the $2,300 note had been paid, except the amount credited from the trustee's sale. The defendant Holloway, appellant here, offered no evidence.

The only point briefed or argued by appellant in this case is that the court erred in not submitting to the jury the question of whether or not the note sued on was the same note that was referred to in the deed from the Bonds to appellant. In this connection, appellant offered, and the court refused, two instructions as follows:

"No. 2. The court instructs the jury that in the deed offered by plaintiff, which was made by Harry L. Bond and wife to defendant William Holloway, said deed provides that William Holloway assumes the payment of a $2,300 note, and you are instructed that there is no proof in this case that that clause has any reference to the note sued on herein, and your verdict should be for defendant Holloway.

"No. 3. The court instructs the jury that unless you find and believe from the preponderance or greater weight of all of the evidence that defendant William Holloway, by receiving and accepting the deed from Harry L. Bond and wife, offered in evidence, containing the clause providing that the grantee assumes the payment of a $2,300 note, agreed to pay the cute sued on in this case, which is made to A. T. Trimble, then plaintiff cannot recover as against said William Holloway, and your verdict and finding should be for defendant William Holloway."

The cases cited by appellant in support of the proposition that the question of whether or not he assumed the payment of this particular note should have been submitted to the jury are not in point. It is true that in each of those cases the well-established rule of law adopted by the courts of this state...