51 Mo. App. 534 | Mo. Ct. App. | 1892
The plaintiff and one J. B. Ins-keep, in November, 1886, lived in Kingsville. Inskeep owned nearly a two-thirds interest in about one hundred and ninety-five acres of wheat which he had sown; one hundred acres on the lands of W. Q-. King, about sixty acres on the land of Mr. French, and about thirty-five acres on the land of Dr. King. A son of J. B. Inskeep, Harvey Inskeep, had a two-thirds interest in forty acres of wheat which he had sown on the land of Mr. French. J. B. Inskeep, with his sons, were grading with mule teams in Kansas City, the remainder of the family remaining at home in Kingsville. His mules at Kansas City were advertised and sold under execution. Plaintiff went up on the day of sale, and was present at the sale. Plaintiff testified that at that time J. B. Inskeep owed him $709.83 on open accounts and promissory notes. He states that he met J. B. Inskeep at that time and demanded settlement; he did not
“Q. Now, then, if Inskeep had paid you $709, this wheat would have been his under your arrangement? A. It would have been optionary with me.
“Q. You would not have wanted the wheat after he paid you the debt? A. No, I think not.
*539 “Q. Then if he paid you the money — received the money from any other source and paid you the money —the wheat would have been his? A. I would have sold him the wheat at any time for the amount he owed me.
"Q. If after he cut and threshed the wheat he had sold enough of it to pay you $709, the balance of the wheat was his? A. Yes, sir, that was the agreement.”
Plaintiff gave Inskeep no receipt against the indebtedness and did not surrender or cancel or enter any credit on the notes or accounts, and still holds them in his possession. J. B. Inskeep returned to Kingsville in December following, and after ten days or two weeks died, and his wife administered on the estate and filed an appraisement of the personal effects thereof, which was admitted on trial. Plaintiff lived near her, had a number of conversations with her about the wheat, and the settlement which he claimed, and knew she administered on the estate, and did not surrender or offer to surrender to her the notes and accounts, and gave no reason for not doing so, though asked at the trial. The wheat was never in the possession of plaintiff. Plaintiff testified that it was to- remain in the possession of J. B. Inskeep under the agreement.' The evidence showed that it did remain in his possession until his death, and afterwards was in the possession and under the control of the administratrix and her boys, and was by them harvested, threshed, hauled to market and sold to defendants, who paid to Mrs. Inskeep the market price therefor. That the amount realized for this interest was $1,100 or $1,200. Plaintiff, some six weeks before the trial of the cause, and some two years after the wheat was threshed, and after repeated denials of his liability, paid for the threshing of the wheat grown on the land of W. Gr. King. Plaintiff testified that when this wheat was being delivered to defendants he
“Kansas City, Mo., November 27, 1886.
“Know all men by these presents: That I, J. B. Inskeep, do on this day and date sell to E. King all my two-thirds interest in two hundred and thirty-five acres of wheat now growing on the King and French lands in Kingsville township, Johnson county, Missouri. Consideration, $709.
“J. B. Inskeep.”
It was not acknowledged or recorded.
Defendants introduced testimony tending to show that no such instrument was ever executed or delivered. The evidence of one witness that wás present at the time plaintiff claims to have received it, and the evidence of a number of witnesses as to declarations and statements made by plaintiff himself; two of whom testified — Mrs. Inskeep and Samuel Inskeep — that plaintiff at one time told them he had a mortgage on the wheat, and when they demanded to see the mortgage he stated that he had no mortgage, but a verbal agreement made in the presence of witnesses. To others he stated that he had a claim on the wheat, for Inskeep owed him; and to still others he stated that he had no interest in the wheat except as the agent of W. G. King, the landlord. The uncontradicted evidence shows that he permitted Mrs. Inskeep and her boys to harvest and thresh the wheat ready for market. The plaintiff sued the defendants for the market value of eight hundred and three bushels of wheat which Mrs. Inskeep had sold and delivered the defendants at their mill. The plaintiff notified the defendants of his claim before they had paid Mrs. Inskeep for all the.wheat.
I. The first ground upon which the appealing plaintiff challenges the judgment against him is that the trial court erred in the admission of parol evidence to prove that the bill of sale from Inskeep to plaintiff was a mortgage. This must be held to be untenable.
The rule, whether right or wrong, seems now settled in this state, that in an action at law parol evidence is properly admissible to prove that a bill of sale of personal property, absolute on its face, was intended by the parties thereto as a security for a debt — a mortgage. Wood v. Matthews, 73 Mo. 477; State ex rel. v. Bell, 2 Mo. App. 132; Newell v. Keeler, 13 Mo. App. 189; Quick v. Turner, 26 Mo. App. 36; Bassett v. Glover, 31 Mo. App. 189.
This is an action by the grantee in the bill of sale against purchasers of the property with notice of the grantee’s claim, so that there are no innocent third parties in the transaction, and for that reason the rule announced in State v. Koch, 40 Mo. App. 635, has no application here.
II. The court on its own motion gave an instruction, whereby it told the jury that if Inskeep signed and delivered to plaintiff the instrument under which plaintiff claims the title to the wheat, the verdict should be for him, provided they should further find that said instrument was not intended as a pledge or mortgage for the security of said consideration or any part thereof as defined in'other transactions. While the plaintiff excepted to the giving of this instruction, no complaint was made of the action of the court in that regard in the motion for a new trial, so that the instruction is not, for that reason, subject to review by us. State v. Nelson, 101 Mo. 477.
IY. The court, without the interposition of an objection by plaintiff, further instructed the jury to answer this question in their verdict: “Was of was not the instrument mentioned in the evidence (if the jury find such instrument was executed by Inskeep to plaintiff) intended at the time of its execution as a mortgage or security for an indebtedness due and owing by-Inskeep to plaintiff?” The jury answered this interrogatory in the affirmative. This special finding based upon an instruction given without objection, supported by evidence, must be regarded as conclusive on the plaintiff, as there was substantial evidence to support the finding of the jury. Walton v. Railroad, 40 Mo. App. 544; Dean v. Chandler, 44 Mo. App. 338. Besides this, the testimony of the plaintiff himself, with that of the other witnesses delivered to the jury, afforded clear and convincing proof that the instrument was not intended to be absolute in its character as recited on its face. The retention of the notes of Inskeep by plaintiff, after.the execution and delivery of the instrument, was a most potent circumstance to prove that the relation of creditor and debtor continued to exist between them thereafter. And, too, the further fact that plaintiff never informed his partner, McConnell, of the purchase of the wheat is not without significance.
It will not do to assume as a matter of law that, if all the facts included in the hypothesis of this instruction are true, the transaction was necessarily a mortgage without reference to the intention of the parties thereto; for it may well have been that after the sale of the wheat by Inskeep to plaintiff that the latter hired the former to harvest it for the excess that it would bring when marketed above its cost to the plaintiff. This may have been the character of the transaction. Although this may have been so, yet,
But it is said that, since the parol part of the transaction took place some hours after the execution and delivery of the written instrument, the former in no event should constitute a defeasance to the latter. The law has long been 'settled in this state that a parol agreement may be engrafted on a written one, so as to alter and modify the terms of the latter. Bunce v. Beck, 43 Mo. 266; Heming v. Ins. Co., 47 Mo. 425; Lanitz v. King, 93 Mo. 513. So at common law a valid mortgage 'of personalty may be made without writing. Jones on Chattel Mortgages, secs. 2, 69; Hughes v. Menefee, 29 Mo. App. 192.
Now, if Inskeep made an absolute sale of the wheat to plaintiff, and.it was agreed further by parol that Inskeep should not deliver but should retain the possession of the wheat, and should harvest and market it, and out of the proceeds received should pay the plaintiff the amount of the debt of the latter and retain the balance, if any, himself, it would be, evidence which might be received by the jury along with the other pertinent evidence in the case from which they might infer the transaction to have been intended as a mortgage. Such a parol agreement, standing by itself, would rest upon a sufficient consideration to bind the parties thereto. It is quite difficult to see why such a valid agreement may not have the effect to so alter and modify the terms of the written instrument as to
On account of this vice in defendant’s fourth instruction, we should feel bound to reverse the judgment were it not for the fact that the jury, in response to an interrogatory to them propounded by the court under an appropriate instruction, specially found from the evidence that the instrument in question was intended at the time of its execution to be a mortgage, so that the giving of the said erroneous instruction worked no injury to the complaining plaintiff. It results that the judgment must be affirmed.