161 Mo. App. 19 | Mo. Ct. App. | 1912
This is an action to recover the amount of an indebtedness of defendant to a third person which plaintiff was compelled to pay in order to discharge personal property owned by him from the lien of a mortgage thereon given to secure the payment of said indebtedness. The cause is here on the appeal of defendant from a judgment recovered by plaintiff for the full amount of his demand.
The parties are Greeks who have lived in this country about nine years and who do not read or write the English language and speak it poorly. Defendant
The partnership was indebted to a trust company in the sum of one thousand dollars and the contract provided that plaintiff should assume and pay that debt. Further the contract required• defendant “to pay all bills heretofore contracted for and in behalf of the said James Magas or Magas and Psinakas, . . . up to and including all bills contracted prior to this date.” On its face this contract purported to include the entire dissolution agreement of the parties. Evidently the description of the property each partner intended to convey to the other included the soda fountains. Plaintiff became the owner of the fountain in the shop conveyed to him and defendant became the owner of the fountain in the other shop. The contract, however, failed to mention the unpaid purchase price of either fountain and that omission gave rise to the present controversy. Defendant did not pay the instalment notes given for the Ninth street fountain and plaintiff paid them and claims that he was compelled
In his answer defendant alleges that by the terms of the actual agreement made by the parties, plaintiff assumed the payment of the notes given for the soda fountain in the Ninth street shop and “that by mistake or oversight on the part of the person who prepared the written contract, the said chattel mortgage was not mentioned in said written contract, which oversight was not discovered at the time either.by the plaintiff or by the defendant. The defendant further says that by reason of such omissions in said written contract, and by reason of a mutual mistake between the parties, the said contract did not refer to said chattel mortgage, nor the notes secured by same, although the plaintiff well knew of the same at the time, and fully intended and agreed that he (plaintiff) would pay said notes when the same became due.”
The answer prays for the reformation of the written contract to conform to the actual agreement. The court submitted to the jury the issue of whether or
It follows that the judgment should be affirmed and it is so ordered.