26 Mo. App. 504 | Mo. Ct. App. | 1887
delivered the opinion of the court.
The petition shows that, on January 1, 1875, the plaintiff bargained and sold to the defendant certain lands, for which the defendant paid him nine hundred dollars in cash, arid gave his three promissory notes, each for six hundred and forty dollars, at two, three, and four years, with interest at ten per cent, per annum, to be compounded annually. Credits are indorsed on the first note for payments made in the years 1878, 1879, 1881, and 1882, amounting in all to $640.88. Judgment is prayed for the amount remaining due on the notes, with a vendor’s lien upon the lands. The defendant’s answer admits the making of the notes, and the purchase of the land, but alleges that, at the time of that transaction, the plaintiff was. indebted to him in an amount between six hundred and seven hundred dollars, on account of the defendant’s interest in certain cattle.
The plaintiff replied, denying the new facts set up in the answer, and adding the following: “And,-the plaintiff, further replying to said answer of the defendant, says: that, at and before the purchase of said land, by the defendant from the plaintiff, as in the plaintiff’s petition set out, aud long prior thereto, the defendant was indebted to and owed the plaintiff a much greater sum of money than the amount of six hundred dollars, or seven hundred dollars, as claimed in .the defendant’s answer as owing him by the plaintiff, for goods, chattels, stock, and personal property, bought by the defendant, for himself, and for others, for which he, the defendant, promised and agreed to pay the plaintiff at the said sale of Christy Gentry’s personal estate, as stated in the defendant’s answer, on or about the eighth day of October, 1867, and for divers and sundry other sums of money owing from the defendant to the plaintiff, for personal property, previously sold by the plaintiff to the defendant, and for money laid out and expended by the plaintiff for the defendant, at his request, and for the services of the plaintiff’s jack to the defendant’s mares, at the
“And the defendant, further replying, avers that the said pretended defence of the defendant, if there ever existed any, is barred by statutes of limitation of the state of Missouri, and by law, and no cause of action or defence can, or ought to, be had or maintained upon said pretended. defence. ’ ’
Upon the defendant’s motion, this part of the reply was stricken out by the court, and the plaintiff here claims that there was error in so doing.
All the eliminated allegations of the reply proceed upon the plaintiff ’ s theory, that the defence to which they respond is in the nature of a .set-off or counterclaim. But this results from an unauthorized interpretation of the pleading. The answer distinctly sets up the plaintiff’s undertaking; to enter certain credits on the notes as soon as the proper amounts could be ascertained, as a part of the consideration for which the notes were given. The defence, therefore, was part failure of consideration. This defence could not be met by either an averment of cross-indebtedness, the statute of frauds, or the statutes of limitation. It attacked the inherent
There was ample testimony to the effect that, when the notes were executed the defendant stipulated for a credit on account of the cattle money, to be computed with interest up to the date of the notes, and so entered as a credit thereon of the same date ; that the plaintiff agreed to this, but said it would be impossible to ascertain the correct amount without a visit to the county seat; that he must first go to Jefferson City, as a member of the General Assembly, and that, upon his return, he would immediately find, from the record, the amount proper to be credited, and would enter the same on the notes, as of the date of their execution ; that, expressly upon this consideration, the defendant signed the notes for the full amount of the purchase money, after deducting the cash payment. The plaintiff testified that no such agreement or understanding was had. The defendant’s account was corroborated by other witnesses, and the court found the issue in his favor. We can discover nothing in the record to impeach the propriety of the general finding on this issue. But the manner in which the finding was carried out, in' the particulars of the final decree, is open to serious criticism. It thus appears that the court, by its judgment, enforced the plaintiff’s parol undertaking to pay interest at the rate of ten per cent, per annum. This was directly violative of the statute, which requires that all contracts for the payment of interest at a greater rate than six per cent, must be in writing. Rev. Stat., sects. 2723, 2724. The legal consequences are the same, in this case, as if it were a suit against the plaintiff to compel payment of the amount which is here to be deducted from the notes. This consideration impeaches only the rate of the interest. But there is another difficulty of more sweeping
The judgment will be reversed and the cause remanded for proceedings in conformity with this opinion.