Wilcox v. McKinney, 5333.

• Decision Date: 20 February 1934
• Docket Number: No. 5333.,5333.
• Citation: 68 S.W.2d 741
• Court: Missouri Court of Appeals
• Parties: WILCOX v. McKINNEY et al.

68 S.W.2d 741

WILCOX v. McKINNEY et al.

No. 5333.

Springfield Court of Appeals. Missouri.

February 20, 1934.

Appeal from Circuit Court, Greene County; Warren L. White, Judge.

"Not to be published in State Reports."

Suit by B. F. Wilcox against Howard McKinney and another. Judgment for defendants, and plaintiff appeals.

Reversed and remanded.

Collins & Pierce, of Springfield, for appellant.

Neale, Newman & Turner, of Springfield, for respondents.

SMITH, Judge.

This is a suit for $3,500 with interest at 7 per cent. per annum, evidenced by a promissory note. The note also provided for ten per cent. attorney fees. The petition was in usual form and sought judgment for the entire amount of principal together with interest due thereon from January 1, 1927, and 10 per cent. attorney fees and for costs.

John F. McKinney filed a separate verified answer in which he admitted signing the note sued on, but that he signed the same with the express understanding and agreement with his cosigner and with the plaintiff that he was signing only as surety for his brother Howard McKinney, and denied each and every other allegation in the petition contained.

As a further defense his separate answer is as follows:

"And for further second amended separate answer herein, defendant John F. McKinney states that on July 1, 1926, the said note and every part thereof was fully paid and extinguished by the sale and delivery to plaintiff B. F. Wilcox of the McKinney Mortgage Company's set of abstract books located at Bolivar, Missouri, in which said set of abstract books this defendant had a substantial interest, and of which company he was at that time president; that in pursuance of and in effectuating and carrying out payment of said note by the transfer of said abstract books, the McKinney Mortgage Company, on said date, transferred the said abstract books to the plaintiff B. F. Wilcox and executed and delivered to the said B. F. Wilcox a bill of sale transferring and conveying the said abstract books to the said B. F. Wilcox; that the said B. F. Wilcox thereupon and at that time took possession of said abstract books and business; that the said bill of sale is not in the possession of this defendant, but that it has been duly recorded in Polk County, Missouri, and that a certified copy thereof is attached hereto, marked Exhibit `A', and made a part of this answer. That on that same date defendant entered into a new contract with Howard C. McKinney, co-defendant herein, whereby he leased the said abstract books to the said Howard C. McKinney, and gave the said Howard C. McKinney a written contract, which said written contract was given by the said Howard C. McKinney, and taken and accepted by the said B. F. Wilcox in lieu and in place of the note sued on herein, and another note which at that time the said Howard C. McKinney owed the said B. F. Wilcox; that one of the original copies of the said contract is hereto attached, marked Exhibit `B', and made a part of this answer; that at said time and place the note sued on herein was, in the presence of and by and with the consent of the said B. F. Wilcox, marked across the face thereof, `Paid in full, July 1, 1926.' That the original note filed with plaintiff's petition herein bears written across the face thereof the above named endorsement, and defendant John F. McKinney incorporates said endorsement written across the face of said note into this separate answer and makes it a part hereof.

"Wherefore, defendant John F. McKinney says that his obligation on the said note has been wholly and fully extinguished, both by the said transfer of the said abstract books and the cancellation of the said note by the endorsement written across the face thereof and by the substitution of the new contract between B. F. Wilcox and Howard C. McKinney, and that he at this time is not indebted to the said B. F. Wilcox on the said note in any sum whatever.

"And defendant John F. McKinney further answering says that after the sale and transfer of the said abstract books to the said B. F. Wilcox, as aforesaid, he, on the 1st day of May, 1930, by an instrument in writing, leased the said abstract books hereinabove referred to, to the Polk County Abstract Company, a corporation, for a term of five years from the 1st day of May, 1930, and that the said Polk County Abstract Company is now in possession of and operating the said abstract books under said written lease; that the said written lease is not in possession of this defendant, but that it is of record in Polk County, Missouri, and that a copy of it marked Exhibit `C' is hereto attached and made a part of his answer, by reason of which facts this defendant says that the plaintiff B. F. Wilcox is and should be estopped from asserting or making any claim against this defendant on the said note.

"Wherefore, having fully answered, defendant John F. McKinney asks to go hence together with his costs in this behalf laid out and expended."

The separate answer of Howard McKinney was in substance the same as John McKinney's answer with reference to transferring the abstract books of the McKinney Mortgage Company; that he and John McKinney owned practically all the stock of that company; and that the books of the abstract company were transferred by them and accepted by the plaintiff in full payment of the note. His answer also contained a general denial.

The plaintiff's reply is as follows:

"Comes now the plaintiff after the introduction of the evidence in this cause and after the argument in this cause and before judgment rendered and while this cause is in the breast of the court under advisement and by leave of court files, this his amended replication so as to make the pleadings more fully conform to the issues as made by the evidence in the cause, and for reply to both of the separate amended answers of defendants denies generally each and every allegation and averment of new matter in said answers contained and further replying says: that defendants did deliver to him an instrument of writing dated July 1st, 1926, purporting to be a bill of sale from the McKinney Mortgage Co., to him conveying a set of abstract books in said instrument described but plaintiff charges the fact to be that said instrument was not intended, given or accepted as and for a bill of sale or conveyance but was intended by both parties and so given and accepted as and for a security or mortgage to better secure the note sued on and the other note mentioned in the separate answer of John F. McKinney and that the collateral contract mentioned in the separate answer of John F. McKinney was made and executed at the same time the instrument aforesaid was delivered as a part and parcel thereof and that the two instruments mentioned in said...