Waterman v. Johnson

• Decision Date: 29 February 1872
• Citation: Waterman v. Johnson, 49 Mo. 410 (Mo. 1872)
• Parties: DAVID B. WATERMAN, Appellant, v. JOHN A. JOHNSON, JOSEPH E. SMITH AND DAVID E. STOTTS, Respondents.
• Court: Missouri Supreme Court

49 Mo. 410

DAVID B. WATERMAN, Appellant,

v.JOHN A. JOHNSON, JOSEPH E. SMITH AND DAVID E. STOTTS, Respondents.

Supreme Court of Missouri.

February Term, 1872.

Appeal from Andrew Circuit Court.

As appears from the petition, in December, 1866, plaintiff executed to one William A. J. Smith his note for $2,300, and to secure it executed to Smith his mortgage, with power of sale, conveying the undivided half of certain lands in Andrew county, Missouri.Afterward plaintiff paid on the note $1,500, and Smith assigned it, with the credit thereon, to defendant Johnson.After the assignment, plaintiff and Johnson were the joint owners and operators of a steam saw-mill in Gentry county, Missouri.In 1869, defendantJoseph E. Smith applied to plaintiff to purchase his interest in said steam saw-mill and its business; and plaintiff, at the request of said defendant Johnson, and also of the said defendant Smith, sold his interest in the mill to said Joseph E. Smith, on condition that said Smith should pay the balance due on plaintiff's note to Johnston, and take and return said note to plaintiff and satisfy and release the lien of said deed of mortgage.It was agreed between said Smith, Johnson and plaintiff that Johnson would surrender and assign plaintiff's note to Smith, and that Smith should deliver the same to plaintiff and satisfy the mortgage on plaintiff's land, on delivery of plaintiff's interest to said Joseph E. Smith, and on the further condition that plaintiff would release Johnson from the payment of about $100 due plaintiff on the settlement of their partnership affairs.The petition further stated that at the instance and request and by the agency of the said Johnson, plaintiff gave up and surrendered all his interest in said mill and its business to said Joseph E. Smith, and released said Johnson from the payment of the said sum due to plaintiff from him, and Johnson agreed and promised to receive the notes of Joseph E. Smith in lieu of plaintiff's note; that said Johnson and Joseph E. Smith, in pursuance of said agreement, took possession of plaintiff's interest in said mill and its business, and changed the firm-name and style of said firm to Johnson & Smith.Wherefore plaintiff stated that his note was paid and satisfied as before stated; that notwithstanding said agreement and payment of said note, defendant Johnson refused to surrender the same to plaintiff according to his agreement, but had caused defendant Stotts, who was sheriff of Andrew county, Missouri, to advertise plaintiff's real estate for sale under said mortgage, to pay the alleged balance due on said note; that said Stotts, having advertised said real estate for sale,...