| Mo. Ct. App. | Mar 5, 1900
Plaintiff sued the defendant to recover the penalty and damages provided for in sections 7094 and 7095 because of the alleged failure of defendant on request to sat
I. The first matter of dispute relates to the record. Plaintiff has objected to defendant’s abstract — complaining that she has incorporated matter which does not belong to it. Erom an inspection of the original bill of exceptions, which we have- caused to be sent up, and other proof we find the following: When the bill was signed by the circuit judge, there appeared attached to the manuscript and following the certificate and signature of the judge several typewritten pages which turned out to be certain instructions claimed to have been given by the court. These instructions were not, however, at the time the bill was settled and signed, incorporated therein; nor were they in any way referred to, marked or designated by the bill proper. They were simply annexed or fastened to the manuscript signed and attested by the trial judge. Subsequently, however, and without the consent of the court or the counsel on the other side, defendant’s attorneys separated the various sheets composing the bill of exceptions and inserted these so-called instructions into the body thereof, placing the sheet having the judge’s signature just after such matter, thereby 'making it appear that said instructions composed a part of the original bill. It is clear, however, that defendant’s counsel intended no wrong in so doing and believed that it was.a mere re-arrangement of the matter which was by them deemed a part of the bill of exceptions.
On this state of facts, we feel bound to ignore this matter' so inserted into the bill of exceptions after it was signed by the judge. It composes no part of the record in the case because not authenticated as the law provides. It does not however work an entire destruction of the bill of exceptions
II. Because of the fact that we dispose of this appeal on one single point, the following facts only need be stated: In December, 1891, plaintiff Hill, while renewing a loan on his land in Yernon county, executed to the Central Trust Company of St. Louis five small notes of $15 each and which covered the extra interest or commission due the trust company for effecting the main loan. These interest notes were made payable in one, two, three, four and five years from date and were secured by a second deed of trust on Hill’s property. Yery shortly thereafter, the Central Trust Company turned over and assigned these several small notes of Hill to Stillman, a broker in Hartford, Connecticut, and Stillman at once assigned them over to a Dr. Wainwright, of the same place. These assignments were made as collateral security (along with other securities) for a large loan which the Trust Company had prior thereto gotten from Stillman, and for which it had executed its negotiable promissory note, which latter note had before that been sold to Wainwright. So that subsequent to about January, 1892, and at the dates hereafter mentioned, Wainwright and the defendant, his wife (the latter inheriting the property on the death of her husband in 1894) owned and held said five interest notes executed by plaintiff Hill. It seems that when the first and second of these $15 notes matured (that is, in December, 1892 and 1893) Hill sent the amounts thereof to the Central Trust Company at St. Louis, and while it acknowledged the receipt of these amounts they did not return to Hill the said notes for the reason in fact that they did not then own the notes or have possession thereof; for, as already stated, the
In 1894 the Central Trust Company became insolvent and made an assignment. In 1897, and after all of these five interest notes had become due, plaintiff Hill, through the assistance of counsel, entered into correspondence with a bank at Hartford, Connecticut, and with Mrs. Wainwright’s attorney at the same place, and therein offered to pay the three notes last maturing, with the condition, however, that Mrs. Wainwright should surrender the entire series, five in number. But this Mrs. Wainwright refused — insisting that she was entitled to payment of all five of the $15 notes, and that payment of the notes due in 1892 and 1893 to the Central Trust Company at St. Louis was not payment to the holder and owner of the notes. Thereupon Hill brought this action in Vernon county, as before stated; Mrs. Wainwright, though living in Connecticut, entered her appearance by counsel, and the cause was tried with the result already stated.
It seems clear to us that the trial court should have sustained a demurrer to the evidence which was offered by defendant at the close of the case. Even if we concede that plaintiff made an offer to pay, or tender of the entire amount due the defendant on his notes, the record yet fails to show that any request was ever made on the defendant to satisfy the mortgage or deed of trust, as the statute provides. We had this exact question in Dunkin v. Ins. Co., 63 Mo. App. 257" court="Mo. Ct. App." date_filed="1895-11-04" href="https://app.midpage.ai/document/dunkin-v-mutual-benefit-life-insurance-6618170?utm_source=webapp" opinion_id="6618170">63 Mo. App. 257. The language there used is applicable here. After quoting from the statute authorizing this kind of an action (R. S. 1889, secs. 7094, 7095) we proceeded to state, that “to justify the recovery, then, the mortgagor must establish, first, payment of the mortgage debt, and secondly demand or
Since then the evidence failed to make a case the judg' ment must be reversed.