White v. Murphy

• Decision Date: 14 January 1922
• Docket Number: No. 2975.,2975.
• Citation: 236 S.W. 674
• Parties: WHITE et al. v. MURPHY (THUETT, Garnishee).
• Court: Missouri Court of Appeals

236 S.W. 674

WHITE et al. v. MURPHY (THUETT, Garnishee).

No. 2975.

Springfield Court of Appeals. Missouri.

January 14, 1922.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Suit by D. H. White and Charles Dorroh, a copartnership, doing business under the name and style of Farmers' Supply Company, against W. E. Murphy, in which R. H. Truett was garnisheed. From judgment for garnishee, plaintiffs appeal. Reversed and remanded, with directions.

Corbett & Stiles, of Caruthersville, for appellants.

Mayes & Gcssom, of Caruthersville, for respondent.

BRADLEY, J.

Plaintiffs sued defendant Murphy by attachment in a justice of the peace court, and summoned Truett as garnishee. Truett answered in effect that he was in no wise indebted to Murphy. Issues were made up on the garnishee's answer. The cause was taken to the circuit court, and there tried before the court and a jury, and verdict and judgment went in favor of the garnishee, and plaintiffs appealed.

Truett, garnishee, employed Murphy to sell his farm of 150 or 160 acres, and was to pay him $5 an acre. Murphy sold the farm to Prather. Prather paid $500 down and gave his two notes, secured by deed of trust on the land for the balance. Prather sold his equity to Johnson, and Johnson sold to Monello. The first note came due and was not paid, and Truett foreclosed. Rannells bought in the land at the trustee's sale, and Truett's notes and all costs were paid in full. No one testified as to the contract except Truett. He testified that he was not to pay Murphy anything if he had to foreclose. Truett succeeded in getting into the record, over plaintiffs' objections, a memorandum of what he said the contract between Murphy and him was. This memorandum is as follows:

"On the sale of the Cody 160 acres to Spees W. Prather, there is a commission of $800.00 due W. H. Murphy of Champaign, Ill., on said sale; however, this is to only be paid out of payments made by Prather on his two notes of 82,500 each, as follows: When Prather pays on said notes 50 per cent. of all such payments are to go to Murphy until he (Murphy) is paid the sum of $800, but in event Prather fails to pay and we foreclose the trust deed securing these 2 notes, then all the obligations (by us to Murphy) are thereby canceled and annulled. R. H. Truett."

Truett says that he made this memorandum at the time of the agreement between Murphy and him, and specifically called Murphy's attention to the fact that, if he had to foreclose, Murphy would get no commission. Plaintiffs objected to the introduction of this memorandum because it is selfserving and signed by only one of the parties. But the view we take of the issues we need not take up this assignment or others predicated on alleged errors in the course of the trial.

Plaintiffs contend that the court should have directed a verdict for them. It is urged that a fair, sensible, and just construction of the contract is that it means that if Truett was compelled to foreclose and take the land back, then and in that event he would not be under any obligation to pay Murphy any commission. It does not appear what Prather and Johnson received for their equities, but it does appear that Prather sold his equity to Johnson, and Johnson sold to Rannells. Truett was asked when on the stand as a witness for plaintiffs what was said between him and Murphy about the commission in case he had to sell under the deed of trust. His answer...