Weis v. Wanstrath
| Decision Date | 08 April 1941 |
| Docket Number | No. 25577.,25577. |
| Parties | WEIS v. WANSTRATH. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; William K. Koerner, Judge.
"Not to be reported in State Reports."
Action by George E. Weis against George J. Wanstrath for breach of a contract to repurchase securities purchased from defendant by plaintiff. Verdict for plaintiff, and from a judgment sustaining defendant's motion for a new trial, plaintiff appeals.
Affirmed, and cause remanded.
J. Grant Frye, of Cape Girardeau, Paul J. Kaveney, of St. Louis, and H. Howard Frye, of Cape Girardeau, for appellant.
John C. Kappel, Jr., and Walter S. Berkman, both of St. Louis, for respondent.
This is a suit on contract instituted December 19, 1935, in the Circuit Court of the City of St. Louis. Tried before a jury plaintiff had a verdict for $5,000. Defendant's motion for new trial being sustained, plaintiff appeals.
The amended petition, as further amended during the course of the trial, alleged that plaintiff was interested in making investments in notes secured by deeds of trust, and having seen a newspaper advertisement of defendant he made written inquiry of defendant, and on November 24, 1928, defendant wrote plaintiff a letter as follows:
The petition alleged that in reliance on this letter, plaintiff made purchase of four different items of securities from defendant; that the makers of each of these securities defaulted in payment, let the property get out of repair, let the taxes become delinquent; that in March, 1933, he demanded of defendant to take them back and reimburse him, but defendant refused; and after various vicissitudes affecting the respective properties held to secure the purchases of plaintiff, including foreclosure of one, receipt of quitclaim deed to one tract, and an equitable foreclosure of another, and an exchange for part cash and a different security for another, plaintiff suffered a loss of $6,729.14, for which he asks judgment.
The answer after a general denial of the petition alleged that defendant had been released of any liability by reason of the letter because plaintiff had extended the maturities of the securities without defendant's consent and had discharged the makers from their obligations on account of said securities; that the letter, if binding on defendant, is an agreement to repurchase the securities in the event of default and to re-acquire the securities with the rights of a holder, and that the relationship between the parties as a result of such agreement is that of seller and purchaser, and that plaintiff is no longer in a position to claim a recovery upon the alleged agreement to repurchase; that the plaintiff has elected to extend the dates of maturity on said obligations, exchange the securities themselves for deeds, and has proceeded to institute foreclosure proceedings and other actions at law and equity to enforce the obligations of the makers of said securities; and in so doing, the plaintiff herein has exercised rights of ownership and has elected to retain the securities and appropriate them absolutely as his own property and has elected his remedy on account of the securities described in his petition and therefore has waived his right, if any, against the defendant on said letter aforesaid and is now estopped to proceed in this action against the defendant on the alleged breach of conditions set forth in said letter.
That the acts of the plaintiff, so set forth in the preceding paragraph hereof, constituted an election of remedies and that as a result thereof, plaintiff has waived his rights and is estopped to maintain this action based upon either a breach of an alleged contract of guaranty or an alleged agreement to repurchase. The reply is a general denial.
The first security purchased by plaintiff from defendant was a note for $4,500, executed by Ida Sincoff on July 23, 1928, due three years after date, and purchased on December 8, 1928; the second purchase was a note for $4,000, executed by Jacob S. Brown on February 27, 1923, due three years after date, and which had been renewed, by the execution of interest notes, and was purchased on May 1, 1929; the third purchase was a note for $4,000, executed by Sam Blocher on August 22, 1927 (the deed of trust dated September 9, 1927), due three years after date, and purchased on or about June 3, 1929; and the fourth purchase was for four notes executed by Louis Goldstein on January 19, 1929, one note being for $300 due January 10, 1934, and three notes for $500 each due January 10, 1935, all four Goldstein notes (called bonds) being of a series of notes aggregating $90,000 and secured by deed of trust, and were purchased by plaintiff on June 30, 1929.
As to all of these notes the interest was paid for a time, but default as to principal or interest was made in each of them at sometime not clearly shown in the evidence but shown to be from a year to sixteen months before March, 1933, at which time plaintiff made demand of defendant to take back the notes and return the purchase price.
After the Sincoff note defaulted on July 23, 1931, plaintiff returned it to defendant and accepted therefor $900 in cash and another note for $3,500. The Blocher note became due August 22, 1930, and not being paid plaintiff extended the time of payment and renewed the note. The Brown note defaulted according to plaintiff's petition sometime in the year 1930; and interest on the Goldstein notes defaulted sometime in the year 1931.
There was evidence tending to show that plaintiff did not purchase all of these notes for himself but that some of them were bought for his son and daughter. However the question of whether plaintiff was the proper party in interest to...
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