136 Mo. App. 676 | Mo. Ct. App. | 1909
Plaintiff is the administrator of his deceased wife’s estate and prosecutes this action to obtain judgment on a promissory note for two thousand dollars belonging to her at her decease, and to enforce
It appears that plaintiff, before Mrs. Bradbury’s death, together with defendant and 0. 0. Graves, who was Mrs. Bradbury’s brother, entered into what may be termed a partnership for the purpose of erecting an opera house in Maryville. Mrs. Bradbury had inherited from her father an estate of about twenty-five thousand dollars and she owned a lot in Maryville. She was not connected with the origin of the opera house project, nor was she a member of the partnership. But yet it was built on her lot and most of the money to build it was obtained from her. Soon after getting the building under way all three partners became discouraged, especially Graves. He being the only one of the three who had any money, the project would then have stranded but for plaintiff obtaining the greater part of the money from his wife with which to pay for it. This amounted to sixteen or eighteen thousand dollars, not including her . lot. The remainder, about five thousand dollars, being received from subscription by public spirited citizens. When the building came to completion it appeared certain that the venture was unfortunate and efforts were made by plaintiff to sell it at a greatly reduced price. Finally it was sold to this defendant and Richard Kuch for twelve thousand five hundred dollars. The terms of the sale at first were eight thousand five hundred dollars in cash, and four thousand dollars in notes; but as finally arranged eight thousand dollars in notes were made to Mrs. Bradbury secured by deed of trust on the property and five hundred dollars paid in cash. That left four thousand dollars, for which Kuch was to execute his individual note for two thousand dollars to Mrs. Bradbury and defendant was to execute his note to her secured by a vendor’s lien on the property, for the remaining two thousand dollars. This last-mentioned note is the one here involved. In executing these two notes last
Putting aside any question of law, to which we will refer further on, it is difficult to discover from the evidence any defense to the action which would be at all consistent with fair dealing and justice. The facts have been found by the trial court to be with the plaintiff and, under a rule in that regard, we should feel constrained to defer to that finding. But the plaintiff really does not need the aid of that rule. The weight of the evidence, as well as the patent circumstances appearing in the face of the case, readily determine it against the defendant. The haphazard and loose nature of the original dealing between the three parties, Graves, the plaintiff and defendant, and afterwards between the plaintiff and defendant, make it difficult to set.out.' But if we put aside the vagueness and inconclusiveness of much of it, there yet remains enough of matters, either conceded or undisputed, to leave defendant without standing. He claims that he, Graves and plaintiff were partners and concedes that Graves and plaintiff contributed the money (except the public subscription) which went into the building, and that he did not “put up a cent”, not “a farthing.” When asked about Mrs. Bradbury’s lot and how that was to be accounted for, he said that plaintiff put that in too.
Not having paid anything in the partnership venture, the question naturally arises what is his claim to an interest in a losing transaction based upon, and why, if he had such claim, did he give the note in controversy instead of demanding a subtraction from the purchase price of the premises? His answer and explanation of this is that he had an interest in the money which the public subscribed to the enterprise, and he devoted his time in looking after the construction of the building; and that he gave the note in controversy so as to deceive Kuch, his partner in the purchase. He was asked if his
Plaintiff stated in testimony that when it was ascertained that defend ant had nothing to invest in' the enterprise he dropped out and all pretense of a partnership interest ceased. That Avhen a sale was about to be made to Kuch and defendant, he set a price to them of fourteen thousand dollars, and in consideration of putting an end to any claim of defendant to an interest for his work, etc., the price was fixed at twelve thousand five hundred dollars, and the notes were then agreed upon and executed, thus determining and settling the whole matter.
The legal question presented is whether plaintiff waived the vendor’s lien for the money evidenced by the note in suit which plaintiff transferred to Mrs. Bradbury as already explained. Defendant contends that taking the mortgage for a part of the purchase money was a waiver. Plaintiff insists that the question of retention or waiver of a vendor’s lien by taking a mortgage for part of the purchase price, is a question of intention. Defendant answers this by the claim that such intention must be reserved in the mortgage itself and not being so reserved in the mortgage given in this case, it is lost. Defendant cites in support of his position the cases of Delassus v. Poston, 19 Mo. 425; Emison v. Whittlesey, 55 Mo. 254; Boyer v. Austin, 75 Mo. 81; Winn v. Lippincott Investment Co., 125 Mo. 528; Nixon v. Knollenberg, 92 Mo. App. 20; and Briscoe v. Callahan, 77 Mo. 134. The last case does, in terms, affirm that taking a mortgage for purchase money waives the vendor’s lien “unless it is expressly stated in such mortgage or deed of trust that such lien is not waived.” The foregoing case of Emison v. Whittlesey is cited by the court in support of that announcement. But neither that case, nor any other, supports it in its full breadth. The other cases cited by defendant lay down the rule that taking a mortgage for a part of the purchase money waives the lien unless there is an agreement that it shall not, but they do not require that such agreement shall
But, in addition to that, the note itself reads that “One year after date I promise to pay to the order of R. M. Bradbury, for unpaid purchase price of Opera House in Maryville, Mo., two thousand dollars, . . . If the interest be not paid annually, or a transfer made affecting the title of the property for which this note is given within one year, then the whole of the note shall become due at the option of the legal holder of the note.” It is thus placed beyond cavil that the parties did not intend to waive the lien, but on the contrary made express provision for its recognition.
The decree was manifestly for the right party and it is affirmed.