74 Mo. App. 217 | Mo. Ct. App. | 1898
— This is a suit in equity to enjoin the execution of a judgment by default for the sum of $366.35, rendered against plaintiff and in favor of defendant Gallemore on the seventeenth of May, 1895. The equities alleged are that said judgment was rendered in a suit begun on the sixth of April, 1895, on the following note:
“$352.25. “Seneca,'Mo., Sept. 29th, 1894.
“On November 29th, 1894, after date I.promise to pay to the order of R. A. Mayfield, Three Hundred and fifty-two and 25-100 Dollars, for value received, negotiable and payable without defalcation or discount and with interest from date at the rate of 8 per cent per annum, and if the interest be not paid annually to become as principal and bear the same rate of interest.
“No. 661. “(Signed) J. L. Sherer,
“Due Nov. 29th, 1894. Daniel Sherer.”
That defendant (plaintiff in said action) before its institution, to wit, February 11, 1895, entered into an agreement with J. L. Sherer, the principal debtor, extending the time for payment of the note for one hundred and eighty days upon the consideration of a mortgage given on said date to secure its payment
"We do not think the adverse ruling of the court on the motion made by plaintiff after judgment in the suit on the note was a bar to this proceeding. The grounds for relief set forth in this petition are of equitable cognizance, and, if true, would have entitled plaintiff to sue in that form. They were not set up on the trial of the suit on the note, for the judgment in that case was upon a default of appearance or answer, and hence did not involve the trial of any issues. Crossland v. Admire, 118 Mo. 87. They were only attempted
The first question presented is as to the alleged agreement to extend the payment of the note. The evidence on this point is conflicting. J. L. Sherer and wife state explicitly that a contract to delay the collection of the note for one hundred and eighty days without plaintiff’s consent was made by defendant with them at the time they gave him the mortgage on real estate for its security. It is not denied either by defendant or his witness Keller that a demand for the extension of the note was made by.the mortgagors, nor
“Seneca, Mo., Eeb..llth, 1895.
“This is to certify that I, N. 0., G-allemore, hereby agree not to foreclose or attempt to foreclose the mortgage given this date from Allie Sherer and her husband to N. C. Gallemore for a period of 180 days from this date.
“(Signed) N. C. Gallemore.”
The two Sherers state that defendant expressly agreed to delay the collection of the note for the time specified in the written agreement; that he refused to take new notes only because he said some litigation might arise over the mortgaged property, and the fact of his taking new notes might raise some question as to their verity; that he expressly agreed to extend the old notes,^and stated further that plaintiff in this case would be released from liability thereon as security. In this clash of testimony, the clear weight of the evidence is in favor of the statement of plaintiff’s witnesses. In the first place neither of them have any pecuniary interest at stake. In the second place, the very act of defendant in taking a mortgage to secure an overdue note, coupled with the contemporaneous written agreement postponing the foreclosure of the mortgage for the exact time, which it is conceded the mortgagors demanded for the payment of the note, affords a logical inference that the indulgence claimed was allowed. 3 Daniel on Neg. Inst.,- sec. 1329. It is true the mere taking of additional security does not per
The only other fact necessary to entitle plaintiff to recover is, that he was fraudulently misled by defendant as to the nature of the suit on the note, and in reliance on such misrepresentation was prevented from making the defenses thereto which are now urged as grounds of relief. The testimony of plaintiff is, that when he heard of the suit on the note he had- a talk with the defendant, in which conversation the defendant led him to believe that the purpose of the suit was to foreclose the mortgage given by the principal debtor