Vette v. Hackman

Decision Date18 February 1922
Docket NumberNo. 22407.,22407.
Citation292 Mo. 138,237 S.W. 802
PartiesVETTE v. HACKMAN.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by J. H. Vette against Frank X. Hackman. Judgment for defendant, and plaintiff appeals. Affirmed.

Alphonso Howe and Richard A. Jones, both of St. Louis, for appellant.

Seneca C. Taylor, of St. Louis, and Henry Higginbotham, of Clayton, for respondent.

WALKER, J.

This is an action at law brought in the circuit court of the city of St. Louis on a written guaranty made by the defendant to the plaintiff to secure the payment of a deed of trust. Upon a trial, a jury being waived, the court found in favor of the defendant, from which judgment this appeal has been perfected.

The guaranty in question was as follows:

"St. Louis, Mo., Sept. 19, 1909. "Mr. J. H. Vette, City — Dear Sir: For value received, I hereby guarantee the payment of a $15,500.00 deed of trust, 6%, executed by George Blockburger and wife to Samuel S. Snow, trustee, together with interest thereon, when the same becomes due, on property in city blocks 2446 and 2447, city of St. Louis,

                Mo.                          F. X. Hackman."
                

The petition pleads the execution of the guaranty and the deed of trust therein mentioned; the making of the principal note for $15,500, due on or before two years, and four semiannual interest notes for the sum of $465, each with 8 per cent. interest thereon from maturity, also secured by the deed of trust; the payment of three of said interest notes, and a default in the payment of the fourth and the principal note; demand of payment, and failure to pay; that the deed of trust was foreclosed according to law, and the property sold at public sale on the 8th day of September, 1914, for the sum of $10,000; that, after paying the charges of the trustee's sale and the last interest note, the trustee had in his hands a balance of $9,255.29, which was credited upon the principal note; that, after crediting said note with all payments thereon, all of which is specifically pleaded, there remained due and unpaid on said principal note the sum of $9,891.45, with interest thereon from September 8, 1914; that plaintiff has made demand of the defendant for the payment of said sum, which has been refused — wherefore judgment is prayed for in the amount stated.

The answer was: First, a general denial. Second, that in May, 1914, one Dunaway and wife, the then owners of the real estate described in the deed of trust conveyed a portion of same to the plaintiff upon his agreement to accept and his acceptance of such conveyance in full payment and ratification of the notes secured by said deed of trust, and that thereby said note sued on was paid, settled and discharged. Third, that in July, 1911, plaintiff, without the consent of the defendant, released three of the lots covered by said deed of trust, and that, by reason of said release, defendant's guaranty was so far altered that he was released from liability thereunder. Fourth, that plaintiff delayed in making the foreclosure, and sold the real estate at an inopportune time, at the inadequate sum of $10,000; that, if properly sold, the property would have brought an amount in excess of the amount due under the deed of trust; that, having acquired the property under such circumstances, the plaintiff is more than repaid for the amount due on said notes, and has lost nothing in having made the loan. Fifth, that, after the plaintiff is more than repaid for the amount under the deed of trust, the plaintiff met the defendant, and told him that the real estate advertised was worth much more than the amount due the plaintiff on the notes secured by the deed of trust, and that he would buy in said property for the amount due upon the notes if no one else bid a larger sum, and that plaintiff told defendant that he need not concern himself about the sale of said property, and that there would be no deficiency in the sale of same, and that he would see that it brought the amount of the secured notes; that, relying upon said assurance, defendant did not attend the sale, and did not attempt to interest others in said property, so as to prevent the sacrifice of same; that thereby plaintiff so misled the defendant that plaintiff is estopped to claim that the price at which he purchased the property at said sale is the market value thereof, and is estopped to claim any sum or sums from defendant on account of the guaranty set forth in plaintiff's petition.

The reply pleads: First, the judgment of the circuit court of the city of St. Louis in Dunaway et al. v. Alewel et al., affirmed by the Supreme Court prior to the trial in the instant case and reported in 204 S. W. 726, as a former adjudication of the matters set up in the second defense in the answer; second specific denials of the matters set up in the third subdivision of the answer; third, an admission that plaintiff did release the three lots mentioned in defendant's answer, subdivision 3, but that said release was made at the instance and request of and with the full knowledge and consent of the defendant, and that the consideration for said release was credited upon the mortgage note for the benefit of the defendant, and with his knowledge; fourth, plaintiff denies each and every other allegation in said answer set forth and contained.

After the decision in Dunaway et al. v. Alewel et al., supra, the defense set up in subdivision 2 of the answer as above summarized and the first plea in the reply relating thereto were withdrawn, and are therefore not for consideration. The execution of the guaranty under oath was admitted.

The trial resulted in a finding in favor of the plaintiff on all of the defenses pleaded in the answer except the fourth and fifth, which, save as to the alleged unreasonable delay pleaded in the fourth, were found in favor of the defendant, and a judgment rendered thereon.

The material portion of the fourth defense, omitting therefrom the allegation as to unreasonable delay in the foreclosure, is that the plaintiff, in acquiring the property at the sale under the deed of trust, was more than repaid for all moneys due upon the notes, and that plaintiff has lost nothing by reason of the making of the loan.

The finding of the trial court in favor of the defendant's fifth defense is supplemented by the conclusion that, in the purchase of the property at the foreclosure, the plaintiff suffered no loss. It is evident, therefore, that the court's ruling in regard to the fourth defense is based upon the sustaining of the fifth.

Other than the correctness of the court's ruling in sustaining the fifth defense we need not concern ourselves; all other matters being eliminated. This defense is set forth in hæc verba in what is in other respects a summary of the pleadings.

It will profit nothing to set out the testimony In detail. To enable it to be satisfactorily determined whether there was substantial testimony to sustain the trial court's action in finding in favor of the defendant upon the fifth defense, it will suffice to say that, however much each of the parties have sought to assail the credibility of the testimony of the other, there is unimpeached testimony that, by reason of the representations made by the plaintiff to the defendant, the latter was induced to stay away from the sale of the property, and that such representations likewise tended to prevent a proposed bidder, who heard the conversation between plaintiff and defendant, from attending the sale and bidding on the property. It is also shown that this property was reasonably worth $25,000, and that this proposed bidder was able, ready, and willing to purchase it at $20,000, and that it was his intention to attend the sale with that purpose in view had it not been for the assurances made by the plaintiff to the defendant, in the witness' presence, that defendant need not attend the sale, that plaintiff would bid in the property or have it bid in, and that he would save the defendant from loss. Plaintiff denies the facts as thus set forth, but his testimony lacks corroboration, and is not in harmony with the other attendant facts and circumstances. Thus concluding, the trial court gave it no credence, but found in this regard in favor of the defendant. Its finding is couched in the following succinct words:

"That defendant knew of said sale under the deed of trust and was notified thereof by plaintiff's counsel. That three or four days before said sale the plaintiff, John Vette, came to defendant's office, and told defendant, Hackman, that he need not be at the sale, that he (Vette) would see that there would be no deficiency on the note secured by deed of trust. That he had a man that would buy it, and that defendant, Hackman, need not pay any attention to it, and that defendant, Hackman, said, `All right, John; I'll not be there then,' and did not go to the sale. That the property at that time was worth $25,000. That previous to this interview Sylvester I. Lewis was ready and willing and able to bid $20,000 for the property at the sale, and that said Lewis did not go to the sale after he found out it was not going to be sold to an outsider."

I. It is scarcely necessary to say that, under the facts here in issue, the burden is upon the appellant to affirmatively show by the record that prejudicial error has been committed by the trial court; that all presumptions are in favor of the correctness of its proceedings, and, if the record is susceptible of two interpretations, it will be given the one which will sustain the judgment rendered below; that, in the absence of an error of law, obscurities, and ambiguities, if any, and all inferences which could be made from the evidence, and about which reasonable minds might differ, are foreclosed by the finding and judgment of the trial court. We have so frequently ruled that the principles above stated will govern in ...

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