Watts v. Meyer

• Citation: 189 S.W. 29
• Decision Date: 24 October 1916
• Docket Number: No. 14440.,14440.
• Parties: WATTS et al. v. MEYER.
• Court: Court of Appeal of Missouri (US)

189 S.W. 29

WATTS et al. v. MEYER.

No. 14440.

St. Louis Court of Appeals. Missouri.

October 24, 1916.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

"Not to be officially published."

Action by Thomas G. Watts and others against Tobias L. Rubenstein and John F. Meyer, with counterclaim by defendant Rubenstein, against plaintiffs and defendant Meyer. Judgment for defendant Meyer, sustaining his demurrer to the petition and his motion to strike the counterclaim of defendant Rubenstein against him, with voluntary dismissal as against defendant Rubenstein, and plaintiffs appeal. Affirmed.

Plaintiffs, appellants here, commenced their action against one Tobias L. Rubenstein and the respondent John F. Meyer. The petition, omitting caption and signature, as also the description of the property, and other matter not here essential, is as follows:

"For cause of action plaintiffs aver that on and prior to the 16th day of August, 1912, the defendant, Tobias L. Rubenstein, was seized and possessed of the following described pieces or parcels of ground located in the city of St. Louis, state of Missouri, to-wit:

* * * * * * *

"Plaintiffs further aver that upon said date the said above described property was incumbered by a deed of trust executed by Tobias L. Rubenstein and Lillie Rubenstein, his wife, * * * dated April 27th, 1909, * * * to secure the payment of one note for $20,000 due April 27th, 1914, and ten semi-annual interest notes each for $500, maturing every six months thereafter, with interest at 8 per cent. per annum after maturity, and that said property was further incumbered by a leasehold executed by Tobias L. Rubenstein to the Ferguson-McKinney Dry Goods Company, a corporation, dated December 22nd, 1905, * * * said lease having a term of ten years * * * and reserving an annual rental of $5,000 per annum. * * *

"Plaintiffs further aver that on, to-wit, August 16th, 1912, the plaintiff, David A. Berger, who was at the time acting in his own behalf and in behalf of plaintiff Thomas G. Watts, entered into a written contract with the said Tobias L. Rubenstein, whereby the said Rubenstein covenanted and agreed with the plaintiffs herein to convey the above-described property by good and sufficient warranty deed to said David A. Berger, who was then and there contracting for himself and his co-plaintiff, Thomas G. Watts, subject to said incumbrance of $20,000, and to the said leasehold aforesaid, for a consideration of $17,000 cash in hand to be paid, and the further sum of $15,000 in one, two and three years, which said deferred payments were to be evidenced by three certain promissory notes of $5,000 each, bearing interest at 5 per cent. per annum, to be secured by a second deed of trust upon the above-described property, containing the usual and ordinary provisions of deeds of trust upon real estate, and under and by virtue of said contract it was further covenanted and agreed that the taxes, interest, rents and insurance upon said property should be adjusted from the date of passing said deeds, and that the transaction should be consummated on or before thirty days from the date of said contract; that as a part of the purchase money for said sale the said Tobias L. Rubenstein, upon the execution of said contract of sale, received from the said David A. Berger, who was acting for himself and the said Thomas G. Watts, the sum of one thousand dollars ($1,000) as part payment and earnest money upon said sale.

"Plaintiffs further aver that at the time of making and entering into said contract for the sale and purchase of said property it was understood and agreed between the said Tobias L. Rubenstein and David A. Berger and Thomas G. Watts that the said property had, by the said David A. Berger and Thomas G. Watts, been sold to the defendant, John F. Meyer, and that before the execution of said contract the said John F. Meyer had entered into a verbal contract with the plaintiffs to purchase said property from the said Tobias L. Rubenstein and the plaintiffs herein, subject to the said incumbrances, for the sum of $17,500 cash, and the further sum of $15,000 to be paid in one, two and three years, said deferred payments to be evidenced by the notes of said John F. Meyer, one for $5,000, due in one year, one for $5,000, due in two years, and one for $5,000, due in three years after date, with interest at 5 per cent. per annum from the date of said notes, and to be secured by a second deed of trust upon the property so sold; and to assume and pay as a part of said purchase money said deed of trust of $20,000; and it was further understood and agreed between said Tobias L. Rubenstein and the plaintiffs herein and the said John F. Meyer that the taxes, interest, rents and insurance should be adjusted as of the date of passing said deeds, and that the said transaction should be consummated on or before thirty days from the date of the said sale, viz., August 16th, 1912, and as part of the said purchase price the said John F. Meyer should and would assume and agree to pay the said deed of trust for $20,000 made by the said Tobias L. Rubenstein and Lillie Rubenstein to the * * * trustee, * * * together with the unpaid interest notes then existing upon said loan; and it was further understood and agreed between the said Tobias L. Rubenstein, plaintiffs herein, and the said John F. Meyer that the said Tobias L. Rubenstein would make his deed conveying said property direct to the said John F. Meyer in consummation of said sale, receive direct from the said John F. Meyer the said cash payment of $17,500, and also receive the said three notes of $5,000 each made by the said John F. Meyer to the said Tobias L. Rubenstein, dated as of the passing of the deeds to the said property, bearing interest at the rate of 5 per cent. per annum, and assume and pay the said mortgage * * * of $20,000, and that the rents, taxes and insurance upon and accruing from said property should be adjusted from the date of passing of the deeds under said transaction.

"Plaintiffs further aver that in the consummation of said contract the said Tobias L. Rubenstein and his wife, Lillie Rubenstein, on, to-wit, September 16th, 1912, made and duly executed a warranty deed expressing to convey to the said John F. Meyer all of the above-described property, subject to the said incumbrances of lease to the Ferguson-McKinney Dry Goods Company and the said deed of trust of $20,000 dated April 27th, 1909, made by said Tobias L. Rubenstein and Lillie Rubenstein, * * * above described, and which in said deed the said John F. Meyer assumed and agreed to pay as part of the purchase price; and the said John F. Meyer made and duly executed a purchase money deed of trust upon said above-described property, fully describing the same in said deed of trust and securing the payment of three certain notes of $5,000 each, one due in one year, one in two years and one in three years after the date thereof, to-wit, September 16th, 1912, the said deed of trust conveying said property subject to said incumbrances to Joseph Berger, trustee, to secure the payment of said notes above-described, and the...