109 Mo. App. 442 | Mo. Ct. App. | 1905
The petition in this ease declares on three separate canses of action, each being a promissory note. The first count, or paragraph, is founded on a note for $1,480, dated February 1, 1896, due three ■years after date and drawing seven per cent interest. This note and another of the same date for $1,500, drawing the same rate of interest, were executed by Dolan to Tucker for the purchase-money of eighty-five acres of land in Knox county. The note for $1,500 is not in suit as it had been cancelled and surrendered before the suit was instituted. This land was bought by Tucker from Virginia Fickel September 25, 1896, for $3,300, and was conveyed by Tucker to Dolan and his wife, Marf C. Dolan, September 28, 1900. It was sold to-Dolan by a verbal contract not later than December 2,1896, and Dolan put into possession, the deed being executed nearly four years afterwards. Why the note for $1,500 was surrendered will appear below. Originally there was a separate action on the note for $1,480, the petition praying not only a judgment for the amount of the note, but the enforcement of a vendor’s lien against the land. The demand for the lien was withdrawn and that action was consolidated with one on the two notes which are the subjects of the second and third counts of the petition. Before stating the facts in regard to the latter notes it will be convenient to go more fully into the land transactions out of which the note declared on in the first count grew. The plaintiff swore he bought that land for Dolan at a price he (plaintiff) deemed excessive, on an understanding that Dolan was to take it off his hands at the same price, and pursuant to that agreement Dolan executed the two notes for $1,500 and $1,480. The amount of these notes was $2,980, and what was done about the difference between that sum and the $3,300 Tucker said Dolan was to pay, was not explained. Another fact which is obscure, is why the two notes were dated
Tbe note for $460 declared on in tbe second count of tbe petition, grew out of a transaction in cattle tbe facts of which are in dispute. It will be observed that tbe petition allows credit for a payment of $320 on that note and asks judgment for the balance due. The answer admits tbe payment of $320 as correct in amount but not as to time, and pleads payments aggregating $448.48. But tbe main defense to this note rests on tbe
“knox County, mo
June 27, 1899 this contract entered into this 27 day of June, 1899 between John Tucker and James dolen both of knox county wheas I John Tucker do place in the hands of sade dolen 20 cows which he agrees to take good car of same as if tha war his own' until the above note becomes due on the 27 day of June in the year 19 hundred and one 1 and when said note and interest ar paid of I John Tucker give up all my write title and clam to those cows to said James dolen as his own property.
John Tucker
James Dolan.”
That instrument, when translated, reads as follows :
“Knox County, Mo., June 27, 1899.
This contract entered into this 27th day of June, 1899, between John Tucker and James Dolan, both of Knox county, whereas, I, John Tucker, do place in the hands of said Dolan 20 cows which he agrees to take good care of same as if they were his own, until the above note becomes due on the 27th day of June, in the year 1901, and when said note and interest are paid off, I, John Tucker, give up all my right, title and claim to those 20 cows to said James Dolan as his own property.
“John Tucker,
“James Dolan.”
It is agreed that the note for $460 represented the purchase price of the cattle mentioned in the foregoing memorandum. Both the contract and the note were written by Tucker and kept by him. The cows were put on defendant’s land and remained there until disposed of and the proceeds turned over to the plaintiff.'
The statute of frauds was pleaded in the replication against the defense based on the alleged verbal contract by which the plaintiff agreed to accept $2,200 in satisfaction of the debt owed him for the land. Other matters of defense pleaded in the answer, in accordance with the above statement, were put in issue by the replication.
The jury returned a verdict for the defendant and the plaintiff appealed.
It will be seen that the evidence left a great uncertainty concerning the true facts of this controversy. It presented discrepancies for the jury to consider. Our task is to examine the rulings of the court on questions of law, and principally on the propositions raised by the instructions tendered.
It is said the statute of frauds is a barrier to the defense against the note for $1,480, as that defense rests on the alleged oral agreement that, for $2,200, Tucker would convey the land and release the notes previously given for the purchase price as fixed by the original agreement. The second agreement testified to by Dolan is oral and is asserted to have been for the sale of the
Another proposition invoked in behalf of the plaintiff is that the agreement testified by Dolan to have been made in September, 1900, that the balance of more than $2,200 then due and owing on the two notes should be satisfied and discharged by the payment of said sum, is inoperative for want of a consideration, because a debt already due can not be discharged by paying less than the full amount of it. Unquestionably Dolan owed more than $2,200 for the land at the time the supposed agreement was made. According to his own statement he owed $2,900 or more, as he had paid but $60 above the interest on the notes during the four years. It is an ancient rule of law, often denounced but always followed, that though a creditor agrees to accept less than his matured debt in full payment, he may, nevertheless, collect the balance. Riley v. Kershan, 52 Mo. 224; Young v. Schofield, 132 Mo. 650, 34 S. W. 497; Winter v. Railroad, 160 Mo. 159, 61 S. W. 606; Jaffray v. Davis, 124 N. Y.164.] The reason for the rule is that the agreement to take less than what is owing is a compact without a consideration to support it, and, therefore, is not binding. This sort of an agreement, as much as any other accord and satisfaction, needs a consideration; and if one party merely agrees to do what he is already bound to do, there is no consideration. [3 Randolph. Com. Paper (2 Ed.), sec. 1835; 1 Beach, Contracts, sec. 424; Smith v. Bartholomew, 1 Metc. (Mass.) 276; Swope v. Bier, 10 Ind. App. 613; Curran v. Rummell, 118 Mass. 482; Wendover v. Baker, 121 Mo. 273, 25 S. W. 918.] The case last cited resembles this one closely and as it was decided by our Supreme Court is a controlling precedent. A deed of trust given by Baker to secure three promissory
“Q. Go ahead and tell what it was and about when it was. A. Well, in 1900, Mr. Tucker, on the 6th day of October, made a deed to me for eighty-five acres of land.
‘ ‘ Q. Wait a minute — was there any talk or agreement about how it should be deeded, commence at the start of it? A. Well, he came out there and he wanted me to take the place, buy the place, and he offered the place to me at $2,200. Well, me and my wife had a talk over it, and she says I’ll go to town and see Mr. Cottey,' see if I could raise the money; so I went to town and saw Mr. Cottey and he said he would try and get the money, get me the money, so that we could get $2,200 on the place, so I sent Mr. Cottey down to Mr. Tucker to see if he was satisfied,to take $2,200 for the place.
“Q. Did you have any further talk with Mr. Tucker, did he say anything further to you about — upon what considerations he would make that deed to you? A. No, sir, he did not.”
There were many questions asked on the subject and a great deal said by the witness; but nothing to throw any more light on the question of consideration than appears in the above quotation. The defendant said the original understanding was that the land should be deeded to him; and he used the same expres
It is said besides, that there was a dispute between the plaintiff and the defendant in September, 1900, as to how much was owing on the land and they agreed on $2,200 as the amount, in compromise or settlement, of the dispute; that the agreement, being in the nature of a compromise, was supported by a consideration. This position must yield; not because the legal proposition is unsound, but because there was no proof of a compromise. The plaintiff’s notes were long past due at the time and his demand was liquidated. There was a controversy at the trial as to how much had been paid on the notes prior to September, 1900, but there is no proof of a dispute on or prior to the latter date. On the contrary, we think the evidence is conclusive that there was no dispute. There is testimony that the note for :$138 for back interest was then given, and it happens that that sum was not far from the true interest from Eebruary to October, as the plaintiff states. But the •essential fact is that the defendant admitted he gave a note for delinquent interest on the two principal notes aggregating $2,980, thus confessing the amount due on ihe principal notes. Because a dispute occurred at the "trial as to what payments had been made previously, we can not conclude there was a dispute at the date of "the second agreement. In fact, if we take the defendant’s testimony at the trial as to what he had paid, he actually owed about $2,900 on the notes; whereas, if we take the plaintiff’s testimony, defendant owed nearly
Courts are prone to uphold, when possible, an agreement by which a creditor accepted less than was ‘ due in satisfaction of a demand, instead of defeating the agreement for want of a consideration; and a very slight consideration will be held sufficient. [Jaffray v. Davis, supra.] Indeed, the law is that a slight benefit to the promisor or a slight detriment to the promisee is a sufficient consideration for any contract; and if a consideration answering that requirement can be shown in the present case, it will make valid the contract in question. [Marks v. Bank, 8 Mo. 316; Lancaster v. Elliot, 55 Mo. App. 249; Columbia Incandescent Lamp Co., v. Mfg. Co., 64 Mo. App. 115.] If the plaintiff had surrendered the note for $1,480 instead of retaining it, perhaps the agreement couldbe sustained as an executed one. [Larkin v. Hardenbrook, 90 N. Y. 333.] He did not, and the record is barren of evidence tending to prove any consideration, even the slightest. Moreover, the court gave an instruction on the subject which made the agreement valid and binding without reference to whether the jury found there was a consideration for it or not. Our conclusion is that error was committed on :this branch of the case. A finding is necessary that there was an understanding between the parties that the defendant should do something either benificial to the plaintiff or detrimental to the defendant, in consideration of the plaintiff’s agreement to accept less than was due.
The error assigned in relation to the note for $460 is that the court submitted the question to the jury of whether plaintiff owned the cattle, the price of which is represented by the note; whereas, it should have construed the written contract of the parties in refer
Tbe plaintiff swore tbe note for $138 represented accumulated interest on tbe two notes given for tbe price of tbe land — tbe interest from February, 1900, to October of'that year. He admitted be bad failed to credit tbe principal notes with tbe interest for which tbe new one was given. Perhaps be made inconsistent statements about tbe matter. According to Dolan’s version, tbe note was satisfied by tbe agreement made in September, 1900, which was to operate as a complete satisfaction of all indebtedness then owing for tbe land. Tbe note in question constituted part of that indebtedness and was discharged by said contract, if tbe contract was made on a valid consideration. If not thus made, Tucker is entitled to judgment on tbe note for $138, but should receive a corresponding deduction from tbe amount of tbe note for $1,480.
The judgment is reversed and the cause remanded.