*1 471 1 next contend' the instruction was Defendants erroneous for require jury it did not to find that a witness has reason the. “intentionally” falsely to a “willfully” or sworn material matter reject part any jury could the whole or of such before the witness’s testimony. jury Under the instruction if the believed witness falsely matter, testimony sworn as to a' material has such ‘‘ failing In rejected.' require witness could be element of the. long swearing, iníentional. false settled law this willful 159; Elkins, 63 State was violated.” v. Mo. v. Powell, Jackson [State 1132; App. 249, Poague 110 Mo. S. W. Mallory, App. v. 208 Mo. ]
395,
H. W. Appellant, v. James M. Brennan. 41 W. S. Huttig, 1054. One, July 28, 1931.
Division *2 Allen, & for ap- cCMarsalek Moser Marsalek Hensley, Allen pellant. *4 Routs respondents.
Charles A. *5 negotiable promissory Ap- notes. C. This is a suit on two
HYDE, J. pellant respondent and B. Miller thereon on November sued petition appellant’s first on 14, 1925. The count declared a note De- Miller to F. for made J. May 11, per six 1924, 1925, cember due with interest at cent 29, $5,000, was on note for per annum from date. The second count Miller respondent and on December also made 26, 1925, provision with the same for interest. ivas due June It nothing count that had been on either the alleged in each principal interest, was, each maturity, and that note before appellant, and delivered to and that value endorsed Appellant rightful prayed judg- owner and holder thereof. per sum of each note with interest at principal for the six cent ment how-, 1924. per trial, from December Before annum thereon appellant dismissed as to Miller. ever, record that these notes were appears from the executed re- following circumstances: spondent *6 arrived, military Major, upon who bore the title action, Louis, October, in St. 1924. scene of about first Major promoter real He companies was a of oil and Texas estate. men, maps, plats, other attorneys, associates,
had confidential large promoter. activities, always projects, essentials of a in had His Long appellant’s Island, reached from Texas to New York. One of “extravagant charitably him witnesses described in his ideas.” Louis, particularly Mr. It seems that the Francis Brothers St. Francis, many S. It. in had sunk thousands dollars some seems, fi- Major’s projects. also, oil It been a had godfather having Major, nancial him in his various to the backed projects Major since with net result that him owed money, may gathered, which, considerable amount of he security entirely satisfactory which him. had Avas Somewhere tangled S. R. affairs, Francis, course these notes of amounts, considerable appellant, came into the hands of was Avho paper business, placed the commercial and were various banks Quinby him. Major responsible It seems that for these. was August 4, 1924, appellant On Avrote S. R. Francis could that he Major not find Quinby; was due at a bank held (a as collateral the Persidio in Texas in land tract land Avhichthe Major “they assignments interested), was also have his all .through assignment of his interests, at the time AArasmade on everything everything had;” Stockton, doAvnat Fort he that this going note was due the 25th and that the bank was to sell the assignments by time; Persidio land and the that “there will be ’’ stuff; get up a lawsuit unless Avecan fixed on this Avas that it very important Major that he meet within the week next urged arrange Francis to this. they
The record is silent as to AAhetheror not met. It does show Major shortly 1st, acquainted after October became respondent, thirty-four years age, with AAho was at the time grocery father, with firm William connected of his J. Bren gone with nan, Respondent, also, whom he his father lived. had way Kentucky, they oper into oil in a small business where company Company. They ated a called Cadillac Oil & Gas eight acres, or ten slialloAA'AArellson a of 177 drilled tract and some producing. wells were these 20, 1924, respondent On October entered into a contract with Major Quinby, violently but, point, parties this differ According happened. respondent’s evidence, to AA'hat he went on Major’s that date hotel room where found the Walter, glowing friend, II. J. and after some accounts with him a prospects, Major concerning respondent Texas in which pulled his chiffonier drawer participate, be allowed to would prepared respondent contract which then and there enthusiastical- signed ly promptly and Walter witnessed. seems that the keep able to the enthusiasm of aflame for a con- period siderable According thereafter. to the Judge evidence of *7 part Metcalf, on the appellant, present Major of was Quinby’s he as attorney sign and saw respondent the contract after it was first very carefully explained Judge, him prepared to the who had it. Major Quinby
This contract recited that was of the owner some 3,000 city in the Stockton, County, Texas, of Fort in Pecos and particular that a and description fully definite of. all was these set plat A,” forth attached, part in a marked a “Exhibit and made of Major the contract. The contract further recited that the was de- making speedy disposition 1,000 of sirous of of the said lots for price per (No question accuracy $100 the of lot. one seems the statement.) of respondent this The contract further recited that contracting Major provide desirous of with the him with the sum $100,000 of within time and for the consideration stated. The the Major provided Quinby agreed then to sell and con- vey encumbrances, of conveyed, or to be free clear with cause and including respondent whom- paid up, taxes of or to those 1,000 lot, $100 may direct, per less than paid soever for procure A;” Major was to of the in “Exhibit that the lots shown selling lots on respondent said a at least five salesmen to assist Quinby’s Major cent, out of per paid of 20 to be basis commission $100; on same respondent might appoint other salesmen the $100,000 the for sales respondent on basis; should be credited salesmen, prospects; their or to made all of these $100,000 coming pay for, out of furnish and would also might approve. The contract advertising as he matter him, such (the Major) party respondent “agrees provide first provided that (not described, A’ or otherwise” from of lots in ‘Exhibit the sale contract) $100,000, which sum of “the total in the italicized thirty days $10,000 on the $20,000 in be as follows: thereafter. day 20th of each month agreed Major Quinby convey provided that The further might whomsoever respondent or to conveyed to be cause paid, includ- and with taxes encumbrances direct, clear of free being land tracts of in certain ing 700 lots situated those being tracts city Stockton, the Fort an addition to platted as B,” “Exhibit attached, marked in a fully schedule described have respondent option contract, with the of the part made a A” be simi- “which shall in “Exhibit of those lots out number
like to be drilled as well the location respect with larly situated ’’B.’ in ‘Exhibit lots shown A,’ as are ‘Exhibit on shown was to be complete abstract title conveyance with of these lots respondent made when bad made the first payment of $20,000 provided for. again The contract, then, recited respondent’s rights' to choose lots from those shown in A,” “Exhibit “similarly ‘ ’ located with drilling reference to the site -shown on A, Exhibit ” platted are the’lots from ‘Exhibit B.’ The contract then further provided that when fully complied with-its terms thé would have- issued and delivered $50,000 to him par value capital o'f the stock of the corporation Stockton Company, Oil organized was to be D-'elawáré with two and one-half million capital; dollars would respondent one-eighth profits the net derived sale financing of leases sold for Oil Stockton assign Company; .respondent would “oil and.gas covering leases 20,000 land;” acres of finally, that the to be furnished Major by respondent, less the salesmens’ commissions ad- vertising, “shall expended and.will he used and toward expense commencing drilling ivell, location which is A,’ shown ‘Exhibit and best interests benefit *8 - Company,” Stockton Oil further, and to cause be to of Company. director elected said Stockton Oil provisions all of respondent, For these munificent for the contract (cid:127)
required-only (in $100,000) .respondent addition to the that should conveyed Quinby Major may cause to be direct, or whomsoever he gas personal property oil leases & and and the Cadillac Oil a Company, C,” Gas in schedule marked “Exhibit described and part “A,” “B” contract. “C” made a Exhibits and were not or ever attached. then appeal’s thereafter; days, a
It from the record that within few Judge by parties, same, were who title to deeds made held subject lots, for a Metcalf numerous Fort Stockton deed of trust securing payment some'$26,000. appears It further that' after days, 30, 1924, exact,, appellant, more October wrote -féw Major, complained Mr. in which he Francis that another letter-to nearly, Qúinby’s shabby financially; had ruined him treatment that com.-, Omaha; 'Quinby notes in paid his- that had Francis had not throwing bankruptcy “by him into several acts of that mitted . -. . bankruptcy will will all be determined our interests ’’ rolling. . . 6, . the ball November and start to St. Louis come a'party any however, “I not be criminal action He-added, will' way.” I is as fight won’t- that The record silent against-Quinby-. for 6, evidently,- on but anything,. happened November what, if rolling.” in “start the ball It is appellant did not reason, some a-meeting December,, in however, that there was. with the-record, - present. one Francis Brothers Major Qfiinby, of. the
appellant, quote appellant’s it, account of made-which, was A 20, was as follows: to Mr. on April 1925,- Francis' written letter my $7,500, “Under contract I loaned six months note, to Quinby, your to be brothers, discounted with care of take releases some Stockton, paid. on Fort which had to be The this, was I «was to receive the 31st December $4,000 January $2,000 22nd another on 22nd each $2,000, cash, month another thereafter which was to take up your this, notes. Quinby Besides out the Brennan was deal your my $7,500 brother note it was due. This all before upon Quinby based the contract with H. that James Brennan had made, to pay under which Brennan was on the 20th of month each thereafter, $80,000 paid. until the I had been You will remember did get any contract, get payment $10,000 this but I did $5,000 paid Quinby Mr. me Brennan notes cash. He allowed $1,000 carrying your apply them notes due May 10, renewals, paid.” when which were the Brennan notes were Major little, up until this seems that time had done anything, marshalling if lots in toward his forces sell the St. thereafter, or soon an office was Louis, this time but that about ’’ 1‘ opened Realty St. Company, name of Louis and Southern under the Through charge of a name of Daniel. this office the man buy per permitted $150 these lots at lot. people of St. Louis high some $15 evidence shows that the procured Judge 1924, On December them. an contract between what was called extension B. Miller to write J. contract of This contract recited respondent. himself and executed; pay recited its terms as had been October “owing disappoint matters and stated other and some ments pay make is unable to ing J. M. Brennan conditions, the said original contract hereto attached provided for said ments as assisting being said J. F. J. desirous the said *9 original carrying terms and conditions of said M. out the Brennan in in the *10 or not.’’ that time original the conversation, January 17, went, this also, after Miller, Judge Major following to letter write got him to tbe 1925, to appellant: to or delivered Major forwarded which your Quinby: Replying “Dear Mr. letter of recent date relative signed notes, bearing 29th, by J. three date of December éxpect I myself, say paid B. Miller and wish these notes to be when given expect due, would not have been if we did not them to these Very truly (Signed) M. yours, taken care of when due. Jas. ' - Brennan.” satisfy appears, however, appellant, letter this did not respondent as for he thereafter wrote follows: Mr, know, Quinby three you “Dear Mr. Brennan: As turned over gave I you me I theni. have him, notes discounted them sold get right you. I can kind of a letter from The letter provided you 17th Mr. of Jan. the bank does'not date wrote you you ex- satisfactory, say in that letter that quite consider given you not paid, notes will be and that would have pect these you expected taken of when due. if had' them to be care them somebody pay you expected if else to Your rather sounds as létter stating kindly notes you me a these Will write letter them. when 'given you will them and that were due course business Hoping any trouble. I can handle the notes without due. Then remain, (Signed) mail, truly, I you by return Yours hear from ' ' ' (cid:127) ITuttig'. II. W. however, letter. (cid:127)Respondent, did not write another testimony as shown development The 'further affairs R; Jr., Francis, S. and David R. Francis from letters about period January June, 1925, seems to be during as follows: selling lots, results
Daniel, office, Louis some but in the St. expectations furnished parties.- Appellant far below notes, purchase lot contracts and note, secured $2500 on Daniel’s all -proceeded spend $14,000, but Daniel of about the 'amount in' collateral paid it was on these money received, whether he $1,000 respondent sales, including advanced. or on new about *11 483 get brothers he that tried, money stated without success, to new Major by telling for the from bank, first, them that he had read respondent get with the contract and that $10,000 per he would month, $2,000 of which them, finally, offering would come to by paper (this January 24, 1925); to endorse his letter was dated $7,500 Major note he executed to in was December, 1924, upon Major’s respondent, based contract with but he had not Major payments received the from (this under this contract 31, 1925); respondent’s letter was March dated that he had received apply $4,000 to out of was *12 given iBryte purchase through for had the of Fort Stockton lots highly appellant Daniel’s officein Louis. In St. these letters recom- property, County, the in mends the tells about oil Pecos excitement says, increasing urges which, the daily, he value the lots and go amending Bryte through suggest with deal, it, Dr. to the as be- he it carried in cause of the fact could not be out accordance with made, contract which Daniel in which he included more oil lands than Quinby Major Daniel, as an owned. seems that inducement giving was an in oil purchasers, with the lots undivided interest land, on tracts of and that leases on some of the lands leases certain Bryte, Dr. been all of these letters to included had not obtained. In his notes as collateral loan he appellant he held stated that made to Daniel. had lot undisputed proceeds that none of the
It seems be respondent payments, on was to ever credited sales were upon notes, ag- contract, under the his make to gregating $10,000, given the extension in connection with contract. sales, any money, from lot appear it of the received Neither does drilling in the well referred to the contract used in the was ever Company. inescapable Oil or for the benefit the Stockton money from evidence, all the received from the is that conclusion, kept expenses, or used salesmen for sales, which was lot not Major Quin- obligations apply upon various appellant went notes. There with the Francis in connection by, either direct or Francis brothers appellant letters were other written with both St. connection disclosing other facts in parties other McIntyre, letter, to C. A. written Chicago deals. One Louis and only as a broker acted attorney Louis, in St. stated an Major Quinby Daniel, obtaining for loans in the matter where he had ob- the banks they paid the had both loans them, collateral. and contracts the lot sales notes with tained 26, 1925, March came note, respondent’s payable $2500 "When Respond- bank. a St.. Louis in the hands found due, it was his enthusiasm paid it, thereafter ent attorney took the who employed an rapidly. He plans his chilled respond- letters to two wrote Appellant appellant. up with matter $2500 note second 1925, when the May 11, on attorney, one ent’s was in de- this note May 25, after other on due, came payment from full demanded he letters of these In both fault. respondent notes be held, and last one said would respondent from “if financially responsible collect he is and lives ’’ adjudicated. can be it He in both until stated letters that he would use his best efforts to obtain a settlement for ob- his ligation Major Quinby contract of October 1924. original In of these both letters stated that he had read the con- language tract., being fh’st his letter as follows: you first I place, your office, “In the told I do want mix this up contract between Brennan and with these ¡Brennan given notes. These notes and Mr. were me wrote a letter they paid would be Avhendue. At the time I received these notes I read supplementary had never contract told that these by Quinby, help taken notes were Brennan out and his avoid having supplementary cash at the time. I never read this Judge I until Metcalf at the Hotel received Jefferson morning. Wednesday original I had read the last basis which I took the notes and These *13 The second letter read: by Metcalf, trustee, Quinby,
“I have a contract with concurred in indebtedness, by per $25 his on notes, on his evidenced pay every per $25 sold. Francis interests were also to receive lot The every apply $7,500 on note of mine Louis, lot lot in St. a on sold December, based give Louis, I when in St. which was induced to lastt which Quinby time, contract, me at upon Brennan showed that the monthly.” which Brennan was to original had seen the appellant At the trial testified that he not payments the due under got notes, but that contract when the the He that he did not obtain explained it him. testified were of (although some his letters indicated January 10, until 1925 *14 (now following 952, 1929), 1919- Sec. R. S. court the made the find- ings of fact and conclusions of law:
“Findings Fact. 1924, 29, made, “1. on defendant Brennan exe- December That Quinby the to F. J. the two notes described in cuted and delivered petition. Quinby by given
“2. defendant Brennan to That said notes were original 20, 1924, sup- an October and a pursuant to dated Quinby and plemental 29, 1924, between December contract dated Quinby agreement to of Brennan’s Brennan, part in execution agreed Quinby to by agreements, lots, which, said for contracts, in Brennan, not described said convey to which lots were be, plats- maps described in or which the were contracts recited but n were attached thereto. n plats “3. That maps identifying no for or the lots contracted were ever attached to contract or to Brennan; furnished repeated plats identify- maps Brennan made to secure efforts such for, lots ing contracted but unable to-secure them. ivas “4. nothing That Brennan received value as a consideration promise pay, by his evidenced upon. two notes sued long plaintiff Huttig had, prior making “5. That for a time to the notes, making Quinby, been said loans to some them unsecured by mortgages, upon -estate, and others secured real included- in being 3,000 some Texas, the latter of the lots at re- Stockton, Fort 20, 1924, Quinby to- the contract of October out of ferred which ' ; convey 1700 lots was to to Brennan. ,,“6. Q-uinby-Brennan. -made,- That at .contracts- were time Huttig were.given, plaintiff and at the time notes sued Quinby assisting and co-opérating with efforts to sell the lots his QuinbyJBrennan others, to in contract and referred for. the securing plaintiff repayment moneys of .the purpose-of which Quinby. he had loaned advanced Quinby-Brennan
“7. making That of the of October contracts 29, giving of- 1924, 1924, ’and December 20, the .notes plan, on, -part general all herein sued were Brennan Huttig Quinby plaintiff undertaking between to sell .these others, enabling Quinby purpose, among repay for the lots .his n (cid:127) Huttig. plaintiff indebtedness December, 1924; plaintiff acquired the notes sued on “8. That discounting purpose for the took said notes said time that he at $1,000; he be a bonus of them, for which was to .that them; gave *15 conveyed fact Brennan, then said contracts were unenforceable and Quinby void between Brennan and and as between Brennan and Quinby constituted no consideration for the notes herein sued on.
“2. court plaintiff, declares the law to be that if time at acquired notes, said knew the contents the contracts between Quinby, pursuant Brennan and given, to which said notes were nothing identify knew that said contracts contained the lots which Quinby convey Brennan, undertook to and knew that the notes acquiring given Quinby which pursuant he ivas were con- said greater tracts, plaintiff acquired rights then under than no said notes payee, would have had. Quinby “3. if plaintiff The court declares the law to be that jointly to, interested the sale of the lots referred and that making of Bren- the Brennan contracts and execution plan plaintiff Quinby nan notes were in furtherance enabling plain- purpose Quinby repay sell said lots for the moneys plaintiff Quinby; tiff if plaintiff which had loaned acquired Quinby they at the time he said notes from knew that by Quinby part payment been from Brennan for obtained agreeing pursuance Quinby to sell to Brennan of such Quinby general understanding plan plaintiff, between then greater rights Quinby plaintiff acquired no under said notes than ac- quired them from Brennan. at the time he secured plaintiff
“The court declares the law to be that if at the time the acquired Quinby anything pay he did not said notes anything therefor, give any- him therefor, promise or him merely thing purpose therefor, value but took said notes - them, plaintiff acquired rights discounting greater then no acquired secured them from notes than the time he said Brennan.” judgment in favor of on both counts
The court entered petition judgment on re- appellant’s and entered appealed has from this spondent’s Respondent counterclaim. undisputed judgment. that under the facts Appellant contends of the notes and was he was the holder due course the evidence' of law. He contends judgment on as a matter entitled to them findings particularly paragraphs 4, 6, 7 fact, -the court’s contrary directly evidence, but are supported are not para- the first three undisputed He contends that evidence. He also contends of law are erroneous. graphs of the conclusions admitted, objection, his letters writ- erroneously over court which, says, in connection respondent’s him to counsel ten suit was commenced. compromise the matter before with an effort
'489 jurisdiction We have because of the amount the for, debt sued computed principal interest, to the date of judgment, ap pellant judgment, be, been entitled to according would to1 the' al- n legations of petition, his in of $7,500. excess' In a ! su^ 011a n0^e part the interest demanded is of the dispute.” in
“amount Construction v.Co. [Baerveldt 231 Bagley, 157, Mo. 132 688; S. W. ex State rel. Trust Co. v. ] Reynolds, 278 213 S. 695, Mo. W. 804. considering appellant’s findings
In contention that the of made fact
by by supported the trial court are not the but évidenee clireetly contrary are undisputed evidence, to the we must following bear in which rule, mind the is well stated 256 Hastain, Barnett v. S. W. l. 752: 750, c. purely law, by
“As this is an action at tried the court without . . . jury, finding a by court, of facts made the if sustained by 172 evidence, Davis, substantial is conclusive here. v. [Jordan 99; 72 192 91 599, 686; Michel, 293, Mo. S. W. Rausch v. Mo. S. W. 396, 1071; 273 202 Smith, Wiley Harlow, Elsea v. Mo. S. W. v. 274 Bingham 533; 202 210 171, (Mo.), Mo. S. W. v. Edmonds S. W. 885; 41; Hayes McLaughlin v. 213 (Mo.), Franke S. W. v. Franke 217 282 Mo. 220 W. (Mo.), 264; Young, 36, S. W. l. c. Cowan v. S. 222 Mooneyham (Mo.), 451;W. Trust 872; Mynatt
l. c. v. S. Union 285 434; Maupin, 223 Mo. Hill, v. 283 Mo. S. W. Crews v. Co. Hays 744; W. l. 954; (Mo.),
226 c. v. 228 c. Black v. S. W. l. Martin S. 242 471-473; (Mo.), Barr (Mo.), 237 W. v. Stone S. Howerton S. ” For other proposition of law is better W. l. c. No 663.] settled.. Bank, Banking Republic v. Co. recent cases see Holland National McCollum, 5 (2d) 815; City post 577, 41 Brookfield v. page S. W. Rhodes, 756; Phillips Wilson, 10; Craig 298 W. v. (2d) v. S. S. W. record, carefully studying 408.
298 Mo. S. W. After length, of it and our out, the substance have set at considerable we every to sustain find is substantial evidence conclusion is that there following is, except one. That one ing by court of fact made part 8: paragraph payments plaintiff testified no
“That evidence there in consideration of the transfer Quinby were made later made to on.” the notes sued plaintiff testimony of the fact. is some evidence course, appellant’s Of pay as a fact that evidently, meant was to find court, What the notes. the transfer -not made consideration ments were immaterial, statement this inaccurate However, we deem are true and the court facts found ^ other s*nee knowledge have the participate in and appellant did not be did, he would transactions, finds he court which the (Sec. 2680, 1929) and holder in due course under the statute R. S. subject *17 notes, regarding finding, respondent no direct which the court made against him, of consideration and failure defenses of want had the paragraphs of the con notes. The three consideration to the first of court,- facts the. there of law both.' Under- the found clusions cover any consideration, if ever was only complete a failure of there was not acquired notes, of which he consideration, appellant the time actively party to it appellant but was a en knowledge, had actual Findings 6 (See paragraphs 7, gaged bringing about. it (which Fact.) Therefore, under facts found court them) supports appellant is the evidence are conclusive because theory may advance. any under to recover not entitled 2 though 1 of the court’s conclusions Paragraphs So even strenuously contends, judgment appellant incorrect, law were as will not be “A correct decision disturbed reversed. not be should ’’ wrong or insufficient therefor. gave reason court because .the' Banking v. Republic Co. National [Holland (2d) Bank, post 577, 41 S. W. But page 815.] true, they It is we do think were incorrect. not contends, contract sell real that a sufficiently not describe estate which does Frauds, not is land, Statute so as to be enforceable remedy only, not to the of Frauds relates void. The Statute effect the statute is validity contract. The sole to the of -the party against the will one contract unenforceable render the 398). Louis, Ry. & (27 K. N. W. C. J. sec. other [St. 192; 25 Aultman v. 95 Booth, 121 S. W. Clark, v. Mo. Co. 7 Mo. It also been 383; West, v. has held Mo. McGowen 569.] Frauds, not under the Statute agreement, an enforceable because (8 for a C. J. consideration note only, is a sufficient is voidable it 351; West, 366). 42 Mo. McGowen Stocke, v. v. 231, sec. [Kratz 321; Rickgauer (Me.), 118 Atl. Mohr 569; 7 v. Lake v. Mo. Fletcher authority upon is a conflict N. But there 117 W. (Neb.), 950.] 79). observed, will be (6 C. L. sec. R. proposition this seeking parties enforce above cases however, in the were:willing the unenforceable perform, performed, Or note had given. for which
‘491 - But Paragraphs say of the court’s conclusions of law ' nothing findings about the Statute of Frauds. The of fact are that Quinby agreed convey to Brennan 1700 lots not de- were scribed in the contract, plats but or maps were be described Brennan; which were or never attached the contract furnished repeated that Brennan maps plats made efforts to secure or such identifying them; the lots unable secure and that Bren- nothing nan received of value consideration the notes sued cover,-does record, any- on. Search of from cover disclose thing possible from which it is to tell lots in- what or leases make subject-matter contract, tended to or lie that either any agreement or ever what and leases came about lots respondent was get or what lots or leases would ever have. of approximately 3,000 The contract stated that he was the owner city Stockton, of Fort Texas. The evidence discloses city Quinby contemplated many there to this and that additions 20,000 platting acres, one. The for which he was to furnish another shows, might any- gas leases, have been oil all to Timbuktu. The most the evidence where Texas shows shadowy kind had, for, that he contracted some claims property in or Fort which some afterwards some near Stockton one claims, subject conveyed Judge trusts, Metcalf to deeds liens and *18 speculation conjecture. is a matter of the extent which be, may following concerning contracts fundamental rules here, properly recalled: may agreement, parties must an
“In order that there be doubt or intention common to both and without differ- have a distinct and, alike, assent, there can be no there- Until all understand ence. thing in must assent to the same fore, parties no contract. Both If as all the terms. sense, minds must meet the same and their settled, agreed no not or mode is any portion proposed terms is agreement.” J. settled, no C. may it be is [13 there on 263, sec. 48.] its and extent of the nature
“It is essential is agreement is it because obligations If an uncertain be certain. acceptance ambiguous begin with, for the or offer is uncertain no there is meet- offer, with the or always required to identical be is “A 266, C. sec. agreement.” J. 59.] and no ing-of [13 the minds left therein.” may blanks uncertain because agreement be written agreement writing incomplete as “A is an 268, C. J. see. 59.] [13 they it, in be left unless can are essential matters blanks as to where 308, writing C. J. parts itself.” [13 supplied from other sec. 133.] at- 174 W. it was S. Browning, 264 Mo. Hudson v. In ties refusing for railroad party liable tempted to hold one 492 he was claimed had contracted for. Because contract did not plaintiff
bind to furnish the ties the sustained a court demurrer judgment, holding evidence. This court affirmed the the contract plaintiff it was void because so indefinite was to do that what mutuality. good “A promise was no The court there said: is not a promise mutuality for a an consideration unless there is absolute party of engagement, right so that each to hold the has once positive agreement.” other to a Ruling 6 Law, 677,
This rule is stated in Case Section as follows: may promises “In order that mutual serve considerations for binding. promise other, they mutually each No constitutes must obligatory upon party prom- such which is not a consideration ising. may promisor, promisee main- It must bind the so legal breach, tain or it and void.” an action its is without effect bound, Therefore, short, parties In if one of is neither is. agreement understanding re- property if or as to there was no what meeting spondent for, contracting there was no part their essential of the contract. In that case the minds 1924, was not at all and there was October, document of a contract theory Par- respondent’s Upon no consideration for notes. correctly of law state the agraphs of the court’s conclusions law. admitting final the court in
Appellant’s contention erred by him to evidence, objection, over his the two letters written attorney respondent’s May, 1925, in which he that he had stated Brennan-Quinby original before
read the got Appellant says show the notes. that these letters they an effort to ^at were written in connection with very compromise upon claim appellant’s settle demanding Appellant notes in suit. We read them. do not so full of these notes. He both of these letters the amount collect offering compromise said that he would no of them. He enough. after long suggesting, that He was respondent them if lived procure full, attempt to paid his would claim *19 Quinby’s against on their contract. settlement of claim Quinby’s getting more of debts No ivas with the idea doubt this in compromise are him offers paid. While is elemental that against making attempt in an com admissible, party them, his attempt compromise promise claim, however, when bis no in connec being his statement made claim made or when is compromise claim not included another attempt tion with an offered, (22 it is admissible is action, in which such statement his Mfg. Co., 113 Mo. 347). v. & Sons Gaus C. J. sec. [Moore Granite & Construction Newberry v. Missouri 975; W. l. c. 20 S.
493 180 Co., App. 672, 570; Mo. S. W. v. Ghio Co., Mercantile 163. App. 686, 163
Mo. S. 551.] W. judgment circuit is right, eourt and it is therefore af- Ferguson, Sturgis
firmed. GG., concur. PER foregoing CURIAM: The opinion by Hyde, C., adopted opinion-of judges the court. All of the eoncur. Mathilda Higgins, Widow and Dependent of Patrick J. Higgins, Company Company, Casualty v. Heine Boiler and United States
App (2d) S. W. 565. ellants. One, July 28,
Division 1931. notes respondent has executed three contract;” stated that 1925; March $2,500, payable $10,000, as follows: total sum of 26, 1925, $5,000, all 1925; payable June $2,500, May payable that provided contract The extension bearing per interest. cent six $10,000, pay and all with should be credited original the 26, 1925; if default was made that June under it extended ments be null notes the extension the payment either in the they of lots from the sale were received void; as funds and expenses, payment the and applied, less commission be should provided paid, payments the they notes, after and of the prepare parties were to contract; and original for in lots for Cadillac additional transfer for the papers, delay without be closed same could holdings, so that Company Oil was somewhat hesi paid. Respondent had been as as soon signing notes, finally, Quinby’s about these but tant did so when optomistic enough attorney, Judge Miller, sign them with him. Respondent says Quinby told him that he would not notes, they these passed transfer but soon from ap- pellant. point, again, At this disagreement there Is a violent as to happened. According what appellant’s evidence, notes; he took the having original without ever seen either the contract or the extension contract, knowledge respondent expected and had no whatever that Judge however, any Miller, them to outside source. Major Quinby time, who was with and at the testified follows : (Quinby) ‘I “The money, He said: need some Witness: and you get Huttig supposed if can fix Brennan to these Mr. is notes, days be here in a and will handle the notes. He will take few he ’ explained and notes, Huttig, to me about his deal of-Mr. he Major Quinby come, me, so me Huttig Mr. was to had called about,Mr. Huttig explain Mr. hotel; he wanted to come Huttig lobby of the hotel and we talked Brennan. I met Mr. you visited, me, ‘Do know this man bit and he told little ‘Well,’ said, you ‘what think ‘Yes,’ and, I do said, Brennan?’ and I ‘Well,’ said, I ‘Mr. and, Huttig, paying him these notes?’ about would'go if he didn’t into the contract think Mr. Brennan don’t contin- you understand, there is some carry out, yet, expect it gencies to that.’ contingencies Q. A. what? Some You understand “Mr. Houts: notes, payment of these and he had—he performed as to to be paper folded in his it, but he had a open it; read he didn’t didn’t notes, these prepared this extension said, ‘You hand and you think said, ‘Well, do said, ‘Yes,’ and he you?’ I didn’t that, now, Huttig, said, ‘Well, Mr. I due?’ and paid when it will be sales,’ hinges on lot this all you understand depends; got you out, and have gotten know; got to be I it has ‘Yes, said likely will work out all harmony, together and work work He will notes.’ asked few lots, Brennan fight; you sell ‘Financially,. I said, I standing, and Jim’s about questions more up there in arrangements are their know what know; I don’t don’t they incorporated or are whether concern; know I don’t grocery it, as charge it, and head of f.ar be at what; he seems individually, worth, is know what he concerned; I don’t as that carry he wouldn’t any contract go into he would think I but don’t other,’ and he mentioned about this ‘You understand said, but, I out, whether, I read contract; know I original don’t about me
Notes
notes and-Major deciding Louis that the St: apparently Appellant Major’s -talents, "of moved limited; for one too field price According lots Chicago $200. Major to and raised furnishing appellant was Francis, appellant’s letters one of tó move. money make this on condition Major additional hopes February 11, 1925, appellant had According to this letter “eventually Chicago, get $350,- a total of would, from thát According hia up everything.” will clean cash, and that Jr., month’s the first Francis, D. R. May 25, 1925, letter Chicago guaranteed office and Quinby’s $300 for rent In this he also said that year’s more. letter $3300 rental entire these County now the time to sell in Pecos all the excitement “with In other letters money out.” Francis get our
notes discount and them to on the Francis notes, aggregated $27,500; which he stated and that he had made arrangement Quinby whereby get a new with $25 he was to from of lot apply $25 the sale each on his debt and also to on the Francis notes. subsequent appellant Major Quinby made with Chicago 12, 1925, in March E. M. Metcalf of Kansas recited that City properties County, Texas, in Pecos held title to certain pledged Major’s property by Metcalf, all with the of said had been approval, purpose paying his debts. Tt recited that two for the marketing portions property of that had been contracts for .entered by Major Matt one with and the other with into !‘ by agree had assented Chicago, Smith of to which contracts Metcalf conveyances proceeds, subject payment make of the net ing to payment by complying him him, for distribution and at least pledges.” It recited meéting further the several liens and with of a share pledge obtain a appellant willing, was in order to of debts proceeds, payment property and the secure in the making, loan, was Major Quinby payment a new him and also agreement then went accept him Metcalf. The conveyance a subject conveyed to the first deed property on to state that the Francis, paid to be subject appellant $7,500 note of trust, con every and Brennan under the Smith taking $25 lot sold out Francis, payable to R. subject $27,500 of S. of notes tracts, proceeds of the by taking out of the $25 also to be appellant, payment after Brennan contracts Smith and sold under the ¡Brennan taxes; also, notes; subject, to the per $2.50 notes; subject to payment of Brennan subject to the Clements; sub to one credited by appellant and lot, to be retained subject Chicago; payment Francis of ject per lot to C. R. $2.50 lot; subject to revenue City per $10 E. M. Metcalf of Kansas a appellant Major’s indebtedness expenses and the made to any loans further $7,000, and to mount of agreement was that this Appellant testified up $10,000. continued Judge Metcalf conveyance, but out, not carried lot sales money however, where shows, to hold title. going. Evidently crediting anything idea of on the Brennan using drilling oil an well in Fort Stock therein, ton, any although them, stated never occurred to none respondent’s obligations(cid:127) were due at that time. Appellant letters, evidence, also A. wrote which were to a Dr. Bryte Louis, attempting L. St. $3600 to collect Dir. notes which
them. notes May finally and the 11th owned here sold to banks one due up.” one of the banks and I Muscatine take it
notes 1924). part December, together of latter he and the were the 10th; January Quinby $2500 gave Major check for on He a said he January on January $1,000; him for that a check 16 he sent that on for protested check paid a $1189.34, him a for and he. sent cheek bank, Quinby’s at note a paid that the same date he $265; and on credit which, $4045.66, gave and him amounting interest, with Quin- of trial $1,000. time the for At the open on his account head- was understood his It by for some time. been seen had not Chicago, but whenever quarters home at father-in-law’s were his York. or in New down town for he was either anyone him there called opinion. to in the referred will be facts material Other deemed setting general and containing denial a answer Respondent filed an procurement Fraud in the defenses, namely: up three affirmative Quinby that he was representations false reason of notes, property 20, to in the owner of referred the contract October convey alleged 1924, same, making which, could and appellant; consideration, that he acted for himself want of and be- cause the contract was unenforceable and void under the Statute Missouri, for Texas, of Frauds of both and the reason that the lands conveyed provided oil which re- leases the contract should spondent described, not further reason that it was complete descriptions not a contract without these and that agreement parties completely executed; entire between the was not Quinby failing failure consideration, comply reason of any with terms of in payment the contract for which he ob- alleged appellant .the The answer that tained notes. caused representations agreement pur- to make the and enter into the for the pose securing respondent ap- the notes of for the benefit both pellant alleged Quinby. appellant It after the contract, execution sold lots referred to in the contract appropriated alleged proceeds. appellant knew that carry did not and could not out time he acquired alleged appellant give the notes. It further did anything notes; for the that he knew the failure considera- alleged tion of the contract and knew of all the facts the answer when he took the notes. The answer concluded with a counterclaim respondent $2536, alleged note, which he had due 26, 1925, appellant March to a bank to had transferred it be- maturity against judgment fore and asked for this a- mount. answering general except Appellant’s reply denial, counterclaim he that he transferred the note which admitted maturity became due March to the bank before its and that paid it. parties jury tried waived the case ivas the court. pursuant Upon appellant’s request, Section Statutes Revised
notes valuable consideration took said he no time he payments plaintiff testified no 'that there is evidence transfer Quinby in consideration were made later made he took; on; them that before notes sued plaintiff of the 20, 1924, and the original contract October both had seen con- .1924, and knew their 29, of December supplemental conveyed to.Brennan which were be that the lots knew tents and description of no them contracts, not described these were to these contracts. maps-or plats attached on' Law. “Conclusions of the contracts to be that “1. The declares the law if court be^ December of October tween Brennan .-and Brennan, contained, conveyed be 1924,- description no could conveyed Brennan agreed be nothing which the lots were in contracts, by these contemplated and, if no lots identified,
he would notes .to same defenses hold the against when a Quinby, regardless have had and what would 1929). .paid (See. 2686, R. S. later for them mounts-he brings court’s conclusions of This us:to consideration . (unnumbered; assignment of the fourth law. is no error There Since, the facts found paragraph these conclusions. course, excluding court, a holder due procurement misrepresentations matter of fraudulent