184 Mo. App. 598 | Mo. Ct. App. | 1914
The plaintiff sues on the following written instrument, designated by the parties and for convenience here as a note: “West Plains, Mo., Dec. 18, 1911. On or before January 2, 1912. I hereby promise to pay to the Citizens Bank of Pomona, Mo., the sum of two hundred and eighty-six dollars ($286)
The appellant has filed in this court a complete transcript, as well as an abstract of the record. Our. statutes and appellate court rules require that the abstract and additional abstract, where the respondent deems it necessary to file one, should furnish the appellate court all that is necessary to be consulted in the decision of the case, whether the appeal be by the long or short form, and we consult the transcript only to determine differences as to what if shows. No additional abstract has been filed, but the parties here have referred us to both the abstract and the transcript to sustain their various contentions. We will consider the abstract only. The facts are not presented with clearness. We are not certain whether this is due to a desire to leave certain facts in a nebulous condition or because some of the facts and the business relation
We gather from the record that W. A. Wible was allowed to become indebted to the plaintiff bank to an amount much in excess of that allowed by law and that plaintiff was threatened with a loss. The then'cashier was responsible for this condition of affairs and the directors were responsible for permitting it. It is not shown with clearness the exact amount of the Wible indebtedness; it is spoken of as being originally $4800, but there was doubtless some interest due when the plaintiff bank changed cashiers and sought to collect or secure the amount owing by Wible. It is shown that the bank held a note for $3000, payable' to the then cashier, Buster, which was secured by a mortgage on some Howell county land. This note was reduced to $2500, by the directors of the plaintiff bank making their individual note to the plaintiff bank for $500, which note was subsequently paid and a credit made on the $3000 note. The balance of this $3000 note was also subsequently paid, as will be noted later. The plaintiff also took or held Wible’s note for $2500, secured by a chattel mortgage on some personal property and, as additional security for which, a note for $600, secured by a deed of trust on some land in Phelps county, Missouri, was turned over by Wible to the plaintiff bank as collateral security. It is shown that Wible later, without authority, sold and disposed of some of the personal property secured by the chattel mortgage and was about to get in trouble over this when the defendant, as his friend, arranged to have the plaintiff give him further time to make good the unsecured shortage, then fixed at $286, by defendant signing the instrument sued on in the nature of a guaranty.
It is conceded that Wible did not pay this balance of $286, unless, by reason of the purchase by plaintiff of the Phelps county land at a tax sale, it should in
The record does not show with any degree of clearness how much the plaintiff has collected on this last mentioned $2500 note. Prom the question asked by defendant’s attorney of the bank’s president while on the stand, but not answered definitely by him, defendant seems to contend that $1000 was realized out of the sale of live stock covered by the mortgage and $140 out of a horse and buggy. Then $500 and interest was paid by the directors on their individual note, making $1640. This is all that is sho'wn to have been paid other than the full payment of the balance of $2500 on the other note secured by the Howell county land. .But, as said, this is not at all satisfactory.
The way in which defendant seeks to charge plaintiff with receiving payment out of the Phelps county land is this: The land was advertised and sold for taxes while plaintiff was holding the note and deed of trust as collateral security and was purchased by the plaintiff. This sale, however, was not brought about by plaintiff unless by its failure to pay the delinquent taxes. It is daimed that, as plaintiff could have paid the taxes and charged same against the land and could have sold the land by foreclosure of its deed of trust, it should be charged the' fair value of the land so purchased at the tax sale rather than the amount bid at the sale. We will assume that this is the law. The evidence, however, is not satisfactory as to the reasonable value of this land at the time of the tax sale, no qualified witness testifying thereto. The plaintiff bank carried it on its books at a value of $375. A witness said that it was worth about $800 at the time of the trial. Nor is it shown definitely when the tax sale took place nor for how much the land sold. One witness said it was sold about two years before the trial in December, 1913, which would make the date of the tax sale the same month as de
The amount that the land sold for at the tax sale is shown only in an indefinite way. There is a recital in the decree rendered in the same court in the case of Wible against this plaintiff for an accounting, tried less than a year prior to the trial of the present case, and which was put in evidence, that the land was sold to plaintiff for $275, and that plaintiff paid the taxes on the same, making a total of $296.40. A witness stated that the bank was really out only about $85; but the bank was evidently bidding against its own debt and bid $275, the costs and judgment for taxes making the $85 actually paid. This surplus had evidently been credited on the Wible note and he got the benefit of the land up to that price. There is, we think, no sufficient evidence on which to base a finding that the land at the time of the tax sale was reasonably worth enough more than it sold for to cover the amount sued for here.
There is considerable said in the briefs as to the instrument sued on being without consideration. Both parties seem to think that there must be some consideration passing to the defendant, as maker, to support the instrument. It is sufficient, however, that some
We think, however, that the former decree of the Howell county circuit court in the suit of Wible against this plaintiff, above mentioned, is such an adjudication of the facts now in controversy as precludes the defense made in this case.' Neither side controverted the correctness of the finding then made and both sides rely thereon. This decree went in without objection, inasmuch as the objection shown is so indefinite that it amounts to no objection at all. [Smith v. Railroad, 127 Mo. App. 160, 165, 105 S. W. 10 ; Fuller v. Robinson, 230 Mo. 22, 50, 130 S. W. 343; Stevens v. Knights of Modern Maccabees, 153 Mo. App. 196, 205, 132 S. W. 757.] The suit resulting in that decree is for an accounting and had for its object the determination of the amount due from Wible to this plaintiff or vice versa. The decree shows that the court inquired into the whole indebtedness between Wible and this bank, the guarantee given by this defendant, and the effect of the purchase of the Phelps county land by this plaintiff at the tax sale. This decree was entered on January 23,1913, and the court there found that Wible then owed the plaintiff bank a balance of $84.80 on the $3000 note, above mentioned, after allowing for the $500 note given and paid by the directors, reducing it
It is evident from this judgment that the then plaintiff Wible, was contending for an allowance on his indebtedness for the difference between the real value of the Phelps county land bought at the tax sale and the price paid by plaintiff therefor. We may concede that the court might have made such an allowance and at once ordered a surrender and cancellation of the instrument sued on here and there designated as “the certain promissory noté of two hundred and eighty-six ($286) dollars executed by one Eugene Oaks (defendant here), and now held by the defendant bank (plaintiff here) as collateral security thereto.” ‘But, as the evidence was probably conflicting as to the value of that land, the court took the more just course of allowing the debtor, Wible, to redeem this land by repaying what the bank had paid thereon. This right’ being accorded to Wible, as the principal debtor, was thereby accorded to defendant, Oaks, as his surety or guarantor. Having failed to redeem the land, it must how be taken that Wible and this defendant have determined that the land is not worth more than the price paid and the land has vested in plaintiff. It is also fixed by that decree that Wible then owed the plaintiff an amount more than equal to the amount specified in the instrument sued on and no proof is offered of its
It results that this judgment must be reversed and the cause remanded, with directions to enter judgment for plaintiff for the amount sued for with interest.
It is so ordered.
