Vaught v. Hez Brown Mortgage Co.

• Citation: 289 S.W. 655
• Decision Date: 03 January 1927
• Docket Number: No. 5797.,5797.
• Parties: VAUGHT v. HEZ BROWN MORTGAGE CO.
• Court: Court of Appeal of Missouri (US)

289 S.W. 655

VAUGHT v. HEZ BROWN MORTGAGE CO.

No. 5797.

Kansas City Court of Appeals. Missouri.

January 3, 1927.

Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.

Action by Maggie A. Vaught against the Hez Brown Mortgage Company. Verdict for plaintiff. From an order granting defendant's motion for a new trial, plaintiff appeals. Affirmed.

Higbee & Mills, of Kirksville, Shelton & Shelton, of Macon, and Redick O'Bryan, of Moberly, for appellant.

Dan R. Hughes and John R. Hughes, both of Macon, and Hunter & Chamier, of Moberly, for respondent.

ARNOLD, J.

This is an action to recover for an unpaid balance of a certain check received as a loan on certain lands owned by plaintiff. The record shows defendant is a corporation existing under the laws of the state of Missouri, having its principal office at Macon, Mo., engaged in the farm loan business and acting as agent for the Kansas City Joint-Stock Land Bank.

In the spring of 1922, plaintiff and her husband, James Vaught, lived in the city of La Plata, in Macon county, Mo. Plaintiff was the owner of divers pieces of property, in and near La Plata, which she traded in June, 1922, to James H. Montgomery, for a farm of 373 acres in Audrain county, Mo. Montgomery executed a deed to plaintiff which was left in the Bank of La Plata, at La Plata, for the purpose of being recorded. Plaintiff then contracted for the purchase of a house in Kirksville, Adair county, Mo., for the consideration of $6,850. On August 8, 1922, after the contract to purchase said house was entered into, plaintiff and her husband applied to defendant, as agent for said land bank, for a loan of $15,000 on the 373 acres in Audrain county. The application for the loan was taken by Hez Brown, president of defendant company, there being present on this occasion only plaintiff, her husband, and Brown. The loan was approved thereafter for $11,000 and defendant wrote plaintiff that the note and deed of trust were being sent to the Bank of La Plata, and asked plaintiff and her husband to go to that bank and execute same.

It appears that plaintiff and her husband went to said bank, where they had a conversation with Leon Tansil, cashier, and Roscoe E. Gooding, president of the bank, who were insistent that plaintiff turn the proceeds of the loan over to the bank, to be used by it in payment of certain debts of her husband which were alleged to be due the bank. The testimony in plaintiff's behalf is to the effect that plaintiff and her husband had previously agreed that plaintiff was to receive the entire proceeds of the loan; that the husband was to be the owner of the equity in the land over and above the amount of the deed of trust; and that plaintiff and her husband refused to allow the bank to apply any part of the proceeds of the loan to the payment of her husband's debts to the bank.

The testimony of Tansil and Gooding on this point is to the effect that, at the time the notes and deed of trust were signed, plaintiff agreed to accept $5,200 of the proceeds of the loan, and that the balance thereof could be used in the liquidation of her husband's indebtedness to the bank; they further testified that the said conference lasted about an hour, and that, when said agreement was finally reached, plaintiff was in tears.

After the loan papers were signed, they were returned by the bank to defendant and by it forwarded to the Kansas City Joint-Stock Land Bank, at Kansas City; a check was issued in the sum of $11,000, payable to Hez Brown Mortgage Company and Maggie A. Vaught, and forwarded to defendant, and, when received, was deposited to the credit of defendant in its bank at Macon. Plaintiff did not indorse the check but it was cleared and paid. Later, defendant mailed to Kirksville a receipt for plaintiff's signature, in which the items of expense incident to securing the loan and the amount paid to the borrower were set out. By letter, defendant requested plaintiff to sign said receipt in the presence of witnesses, which was done, thereby acknowledging receipt of the sum of $10,978, the full amount of the loan, less expenses incident to its making, and plaintiff then mailed the receipt to defendant, at Macon, Mo.

Plaintiff had not then received the money, but had been told by defendant that the money would be sent to her when the requested receipt was received. Defendant, however, did not remit direct to plaintiff but on October 16, 1922, mailed its check in the sum of $10,978, payable to the Bank of La Plata and Maggie A. Vaught, to the Bank of La Plata. It appears plaintiff never saw this check and did not indorse it, but that her name was indorsed thereon without her knowledge by the cashier of the Bank of La Plata. Thereupon, and without the knowledge or consent of plaintiff, the cashier then deposited the check to the credit of plaintiff's husband, James M. Vaught. It appears that, prior to the time plaintiff signed the receipt just mentioned, her husband had held a public sale and had deposited the proceeds thereof, in the sum of $5,500, to his credit in the Bank of La Plata. He then drew a check in said amount on that bank, which he deposited to his credit in the Kirksville Savings Bank, and later drew a check payable to plaintiff against that account for the amount of $5,500. Also, in connection `with the loan, a certificate of stock in the Kansas City Joint-Stock Land Bank was issued in plaintiff's favor, which she ultimately received.

This suit was instituted to recover the. sum of $4,678 and interest, which was the full amount of the net proceeds of the loan, less the $5,500 in cash and $750 stock certificate in the land bank at Kansas City. The suit was filed in Macon county, Mo., and by agreement of parties was sent to Moberly, Randolph county, on change of venue, where it was tried to a jury. There was a verdict for plaintiff in the sum of $5,500. A motion for a new trial was promptly filed by defendant and was sustained by the court, and, from this order, granting a new trial, plaintiff has appealed.

The points embraced in the motion for a new trial are (1) The verdict is against the evidence and the weight of the evidence and the law under the evidence; (2) the verdict is for the wrong party; (3) admission of incompetent evidence on the part of plaintiff' over objections of defendant; (4) rejecting competent, relevant, and material evidence offered by defendant; (5) refusing to sustain defendant's objection to the introduction of any testimony under plaintiff's petition, because it did not contain facts sufficient to constitute a cause of action against defendant; (6) refusing defendant's instruction in the nature of a demurrer at the close of plaintiff's evidence; (7) giving plaintiff's instructions 1 and 2; (8) refusing instructions A, B, C, and D; (9) refusing defendant's instruction in the nature of a demurrer at the close of all the evidence; and (10) because plaintiff's petition does not state facts sufficient to constitute a cause of action.

As grounds for granting a new trial, the court stated:

"(1) Because the court erred in refusing defendant's instruction in the nature of a demurrer at the close of plaintiff's evidence in chief. (2) Because the court erred in giving plaintiff's instructions numbered 1 and 2, under a proper construction of plaintiff's petition. (3) Because plaintiff's counsel committed error, first, by unwarranted insinuations during examination of witnesses, and argument that the bank whose officers were witnesses was liable to, or would, protect defendant, and that defendant should be held...