101 Mo. App. 563 | Mo. Ct. App. | 1903
On April 8, 1898, appellant submitted an application to respondents, at Mexico, Missouri, for a loan of $20,000 for five years at rate of six
Upon the state of facts above outlined, this action was instituted in the circuit court of Audrain county, being in replevin for the instrument above described given in payment of commissions, the petition in substance alleging that plaintiff, on the first of January, 190.1, had fully paid the note of $20,000 given to the Northwestern Mutual Life Insurance Company, and also paid in full and discharged the note given to defendants, the subject of the suit, the value of which was assigned as $182.50, and that he was entitled to its possession. The defendant’s answer contained a general
Prom the preceding statement of the pleadings and the proof introduced, it will be seen that the only question presented is, whether the loan of twenty thousand dollars, effected by defendants for plaintiff, had been extinguished so as to terminate any further obligation on the contract for commissions, which by its terms was to endure unconditionally for two years and to continue in force thereafter so long as the sum of $20,000 or any part remained unpaid to the mortgagee. The contention of plaintiff is that the original loan was paid and satisfied from the proceeds of the loan of $25,000, and it is immaterial and of no consequence, that the source from which the means of such payment was derived was the holder of the subsisting mortgage debt; that the effect
It will be remarked as worthy of attention that the application submitted by plaintiff and introduced in evidence by him, provides for the payment of the annual installment of commission for the number of years, not exceeding five, the loan shall run, with the further provision for a proportionate reduction in the commission in the ratio the principal of the loan might be reduced by prepayment. The subject of the contract between-the plaintiff and defendants was the securing for the accommodation of plaintiff of the sum of money on mortgage security, and their compensation was contingent and depended in part upon the period of time he might find it advantageous, or convenient to use the funds borrowed.
The note for $20,000, with the deed of trust protecting it, were but the evidences of the mortgage obligation, and the change in the form of the indebtedness did not discharge or liquidate it. The original sum of twenty thousand dollars entered into and formed an integral part of the subsequent note for $25,000, and the latter transactions between the plaintiff and his creditor, the insurance company, did not constitute payment, for the purpose of this action, of the loan obtained by plaintiff through defendants. The consideration to him