Wissmann v. Pearline

• Citation: 135 S.W.2d 1,235 Mo.App. 314
• Parties: GOTTLIEB F. WISSMANN AND MARY WISSMANN, HIS WIFE, (PLAINTIFFS) APPELLANTS, v. DAVE PEARLINE AND DORA PEARLINE, HIS WIFE, (DEFENDANTS), RESPONDENTS
• Decision Date: 09 January 1940
• Court: Court of Appeal of Missouri (US)

135 S.W.2d 1

235 Mo.App. 314

GOTTLIEB F. WISSMANN AND MARY WISSMANN, HIS WIFE, (PLAINTIFFS) APPELLANTS, v. DAVE PEARLINE AND DORA PEARLINE, HIS WIFE, (DEFENDANTS), RESPONDENTS

Court of Appeals of Missouri, St. Louis

January 9, 1940

Appeal from Circuit Court, City of St. Louis.--Hon. Joseph J. Ward Judge.

Judgment affirmed.

Heideman & Heideman for appellants.

(1) Meyer v. Weber, 109 S.W.2d 702, 705; Koontz v City of St. Louis, 89 S.W.2d 586, 589; Callaway v Perkins & Collier, 246 S.W. 966, 967. (2) Meyer v. Weber, supra, (Point I); J. B. Colt Co. v. Gregor, 44 S.W.2d l. c. 6; Marshall Hall Grain Co. v. P. H. Boyce Mercantile Co., 211 S.W. 725; Bank of Dearborn v. Gabbert, 291 S.W. l. c. 144; Metropolitan Discount Co. v. Wasson, 235 S.W. 265; Farmers' State Bank of Greentop v. Sloop, 200 S.W. 304. (3) Sec. 3094 R. S. of Mo., 1929; Reed v. Innes, 120 S.W.2d 711. (4) Meyer v. Weber, supra, (Point 1); Marshall Hall Grain Co. v. P. H. Boyce Mercantile Co., supra, (Point 2); Bank of Dearborn v. Gabbert, supra, (Point 2); J. B. Colt Co. v. Gregor, supra, (Point 2); Metropolitan Discount Co. v. Wasson, supra, (Point 2); Farmers' State Bank of Greentop v. Sloop, supra, (Point 2). (5) Meyers v. Weber, supra, (Point 1); Budd v. Budd, 97 S.W.2d 149; State ex rel. v. Thompson, 337 Mo. 328, 85 S.W.2d l. c. 600; Birdsong v. Jones, 225 Mo.App. 242, 30 S.W.2d l. c. 1098; Shapiro v. John Hancock Mut. L. Ins. Co., 107 S.W.2d l. c. 835; Connole v. East St. Louis & B. Ry., 102 S.W.2d 581.

Julius L. Block and Cecil Block for respondents.

(1) There is no merit in appellants' assignment of error in the refusal to give the plaintiffs' requested peremptory instruction. (a) The plaintiffs, having requested an instruction on the merits, have waived their peremptory instruction. Fawkes v. National Refining Co., 108 S.W.2d 7; John Deere Plow Co. v. Gooch, 91 S.W.2d 149; Farmers' State Bank v. Miller, 26 S.W.2d 863, 864; Gibbany v. Walker, 121 S.W.2d 317, l. c. 321. (b) The jury having found adversely to plaintiffs on the issue submitted by plaintiffs' instruction on the merits (viz., assumption vel non), the plaintiffs are estopped to allege error in submitting that issue to the jury and in refusing to give the peremptory instruction. La Monte Bank v. Crawford, 27 S.W.2d 762, l. c. 764; John Deere Plow Co. v. Gooch, 91 S.W.2d 149; Thomas v. Boatright, 245 S.W. 211. (2) The court did not err in permitting defendants to prove by parol evidence that they did not, as a matter of fact, agree to assume the payment of the note, contrary to the statement in the warranty deed and extension. Empire Tr. Co. v. Hitchcock, 123 S.W.2d 565; McFarland v. Melson, 20 S.W.2d 63, 66; La Monte Bank v. Crawford, 27 S.W.2d 762; Empire Trust Co. v. Hitchcock, 123 S.W.2d 565; Empire Tr. Co. v. Hitchcock, 123 S.W.2d 762; Berry v. Royster, 232 S.W. 477; Slinkard v. Lamb Const. Co., 225 S.W. 352. (3) Empire Tr. Co. v. Hitchcock, 123 S.W.2d 567; La Monte Bank v. Crawford, 27 S.W.2d 762. (4) Nichols & Shepard Co. v. Hardman, 62 Mo.App. 153, 155-6; State Bank of Sarcoxie v. Harp, 282 S.W. 737; Harrison v. Lakenan, 189 Mo. 581, 88 S.W. 53, 57; State Bank of Sarcoxie v. Harp, 282 S.W. 737; Granberg v. King Candy Co., 81 S.W.2d 981, 985; Sanders v. North End Bldg. & Loan Assn., 178 Mo. 674, 77 S.W. 833. (5) Brown v. Shock, 27 Mo.App. 351; Mason v. Barnard, 36 Mo. 384, 391; Heard v. Ritchey, 112 Mo. 516, 20 S.W. 799.

McCULLEN, J. Becker, J., concurs; Hughes, P. J., not sitting because not a member of the Court when case was submitted.

OPINION

McCULLEN, J.

This suit was brought by appellants, as plaintiffs, to recover from respondents, as defendants, a balance alleged to be due after the foreclosure of a deed of trust securing the payment of a negotiable promissory note and interest. A trial before the court and a jury resulted in a verdict and judgment in favor of defendants. After an unavailing motion for a new trial, plaintiffs duly appealed to this court.

The petition of plaintiffs alleges that they are husband and wife, and that defendants are also husband and wife; that, on January 25, 1927, defendants became the owners of a certain piece of real estate situated in the City of St. Louis, Missouri, which was then encumbered by a duly recorded deed of trust securing the payment of a negotiable promissory note in the sum of $ 3000, dated January 14, 1924, payable to the order of Mildred M. Collins on January 20, 1927, with interest thereon from maturity at eight per cent. per annum; that payment of said note was extended from time to time by the holder thereof until January 20, 1936, and that said note was endorsed in blank by said Mildred M. Collins and delivered to plaintiffs, who are now legal holders and owners thereof; that, on January 25, 1927, defendants, in the purchase of said real estate, assumed said deed of trust and agreed to pay said note of $ 3000 as a part of the purchase price and consideration for said real estate, and as a consideration for the extension of the payment of said note on January 13, 1933 for an additional period of three years from and after January 20, 1933.

The petition of plaintiffs further states that defendants defaulted in the payment of said note and the interest accrued thereon; that said deed of trust was foreclosed on January 2, 1936 to satisfy said indebtedness; that the accrued interest on said note on January 2, 1936 and the costs of the foreclosure sale aggregate $ 147, making a total of $ 3147 due plaintiffs on said note; that the real estate described in said deed of trust was sold at said sale for the sum of $ 1500, which was applied as a credit on the note and costs of sale, leaving a balance of $ 1647 still due and unpaid. Plaintiffs prayed judgment for $ 1647 with interest thereon from January 2, 1936, at the rate of eight per cent. per annum.

Plaintiffs filed with their petition a verified copy of the above mentioned note.

The answer of defendants, after a part thereof had been stricken out by the trial court, was a general denial.

It appears from the evidence that defendants, who are husband and wife, purchased the real estate from Abram Spivack and Fruna Spivack, his wife, on January 25, 1927. The property at that time was encumbered by a duly recorded deed of trust securing payment of a negotiable promissory note for $ 3000, dated January 14, 1924, which had been executed by Abram Spivack and Fruma Spivack, his wife, being payable to Mildred M. Collins on January 27, 1927, with interest from maturity at the rate of eight per cent. per annum. Said deed of trust is dated January 14, 1924, the same date as the note, Harry Kaplan being named therein as trustee for Mildred M. Collins. It is conceded that there was a default followed by a foreclosure sale of the property under said deed of trust, and that the amount realized at the sale as well as the cost of the sale and the balance remaining due, after allowing all credits on the note, were as alleged in plaintiffs' petition. The property was bought in at said sale by plaintiffs.

Plaintiffs introduced in evidence the note showing on the back thereof the extensions of payment. They also introduced in evidence the warranty deed executed by Abram Spivack and Fruma Spivack, the original makers of the note. It is stated in said deed:

"This conveyance being made subject to a deed of trust, of record in Book 3904, on page 521, securing a principal note for the sum of Three Thousand Dollars, which bears 6% interest per annum, payable semi-annually, and extended to mature January 20, 1930, which said parties of the second part assume and agree to pay in part purchase price for above described property."

The parties of the second part referred to in the above-quoted part of the warranty deed are the defendants herein.

Plaintiffs also introduced in evidence their Exhibits "F" and "G," which are agreements signed by defendants wherein the time for payment of the note was extended. In Exhibit G, dated January 16, 1933, extending the time for payment to January 21, 1936, it is stated that defendants, in consideration of such extension, do assume the mortgage deed of trust and agree to pay the $ 3000 note.

The evidence shows that, when plaintiffs purchased the note and deed of trust in 1927, the transaction was handled for them by Mr. Charles L. Weber, who was also the agent for defendants in the original purchase of the property by defendants from the Spivacks. Weber also made the arrangements for the extensions of time for the payment of the note.

The controversy between the parties revolves around the charge in plaintiffs' petition that defendants, in purchasing the property on January 25, 1927 from the Spivacks, assumed the deed of trust which then encumbered it, and agreed to pay the $ 3000 note as a part of the purchase price and consideration for said real estate and as a consideration for an extension of the payment of the note on January 16, 1933 for an additional period of three years from and after January 20, 1933. As to these points the evidence on behalf of defendants was to the effect that they could not read English and had no knowledge of the assumption clause in the warranty deed, and had no knowledge of the extension of time for payment of the note whereby they are alleged to have assumed the payment of said note. Defendants' evidence further tended to show that defendants did not agree to assume payment of the note, and that they had no intention of entering into any such agreement. The evidence for plaintiffs was directly and contrary to that of defendants, and tended to show that defendants did know of the assumption clause in the deed of trust and did agree to pay the $ 3000 note.

Plaintiffs contend that the evidence, both documentary and...