84 Mo. App. 157 | Mo. Ct. App. | 1900
At the January, 1893, term of the Jefferson Circuit Court, Harry S. Harmon recovered of J. Prank Lee a judgment for $240.97 in a suit on a promissory
The material averments of the petition are (in substance), that Lee had an open and unsettled account against Harmon for $400; that about October 12, 1893, Harmon began his suit in the Jefferson Circuit Court against Lee on the $304 note by attachment; that armed with a writ of attachment issued in the cause the sheriff of Jefferson county and Harmon proceeded to the premises of Lee to levy the attachment and serve the summons; that on arriving at Lee’s house Harmon and Lee got together and fully settled and compromised all matters of dispute between them, including the note sued on; that in said settlement it was agreed that Lee owed Harmon $300, and that Harmon agreed then and there to accept in settlement of said sum a piece of real estate owned by Lee situated in Jefferson county, and that Lee thén and there made and executed to Harmon a deed to said piece of land, which was then and there delivered and accepted by Harmon in full payment and settlement of said balance, and that Harmon then and there agreed to dismiss his said suit and pay all the costs thereof; that relying on said agreement, and settlement Lee did not appear to said suit; that Harmon in the absence of Lee, without his knowledge or consent and in fraud of said agreement and settlement, instead of dismissing said suit, took judg
That answer admitted that Harmon took the deed to the real estate, but denied that it was in settlement of the note, denied that any settlement was made, denied that he in 1893, or at any other time owed Lee $400, or any other sum on account, and averred that he accepted the deed to the real estate because the land was all the property that Lee owned at the time on which his attachment could have been levied, and that Lee conveyed the land to him to prevent the levy of the attachment on personal property which Lee was then about to sell at a public sale, which personal property, however, Lee claimed, belonged to one Mead, his father-in-law. The evidence of Lee is positive and direct that the settlement was made and that the conveyance was executed as a finality and in full settlement of all accounts and matters in dispute between him and Harmon, including the $304 note, and that Harmon agreed to dismiss his suit and pay the costs; that in a day or two after the settlement was made he removed from Jefferson county and had not resided there since; that he never learned that the judgment was rendered until he was served with the execution, by the sheriff in Jasper county, where he resides. As to the settlement, Lee is corroborated by Maupin, the sheriff, who had the attachment writ for service. He says there was a settlement made; that the attachment was not served by .direction of Harmon, and that Harmon on the same day paid him all of his fees and three per cent commission on the $300 (consideration for the land deeded to Harmon by Lee). Harmon as a witness denied that he owed Lee anything on any account, deidad that any settlement was made between them, and says that Lee offered to convey the land to him for $300, to be applied as a -credit on, the note, if Harmon would not have the attachment served and let him proceed