78 Mo. App. 676 | Mo. Ct. App. | 1899
There was a trial by the court without a jury. At the request of the interpleader the court made a special finding of facts, which is to the effect following:
“That on the twenty-second day of September, 1896, and prior thereto the Victor Mining Company was a corporation organized and existing under the laws of the state of Missouri and on that date, it was indebted to the Bank of Carterville, a corporation organized and existing under the laws of the State of Missouri, in the sum of $2,164.35, for which amount the said bank held a note of said Victor Mining Company, signed by said company, and E. E. Dwight, J. B. Flanders and A. M. Drake, all as principals, which said note was not then due. That Flanders, Dwight and Drake were solvent; that the Victor Mining Company was heavily indebted to various persons other than the Bank of Carterville,*679 and was insolvent and was being pressed by some of its creditors and tbat fact was known by interpleader on September 22, 1896; that on said date and prior thereto the interpleader, ~W. B. Kane, was cashier of Said Bank of Carterville; that on said twenty-second day of September, 1896, without consulting the Bank of Carterville or any of its officers or the interpleader, ~W. B. Kane, or. without being asked or requested to give any additional security for the indebtedness which it owed to the said Bank of Carterville, said Yictor Mining Co. executed a chattel mortgage on all its property to W. B. Kane, interpleader, to secure a note for the sum of $5,161.35, which note was particularly described in the mortgage; that this mortgage was executed for the purpose of obtaining three thousand dollars to be thereafter advanced by the interpleader, W. B. Kane, and that at the time said note was delivered to Kane in the Indian Territory, it was agreed between said Yictor Mining Co. and the interpleader that the mining company would send in its bills to the interpleader and that he would draw his own check on the Bank of Carterville; that said note and mortgage were delivered to the interpleader at Waggner, I. T.; that said mortgage was on the twenty-fourth day of September, 1896, duly filed for record in the office of the recorder of deeds of Jasper county, Missouri, and was duly recorded and afterwards on the twenty-fifth day of September, 1896, the plaintiff, with other creditors, attached the property in said mortgage described; that the said mortgage •contained a provision that the mortgagor might retain possession of the property until the debt became due, with the proviso that in case of the sale, disposal or removal of the property or any part thereof, or the attempt to sell, dispose of or remove said property or any part thereof, the whole debt should at once become due and the mortgagee should at once have the right to the possession of said property; that up to the time of the levying-of the attachment the inter-pleader had advanced no part of the sum agreed to be advanced and after the attachments he refused to advance any*680 sum, and it was then agreed by and between the interpleader and the defendant that no further sum should be advanced and that the sum he had agreed to advance should be credited as a payment on the note secured in the mortgage, which was done; that the said note of $2,164.35 was not canceled or delivered to said Victor Mining Oo. but was retained by said bank and treated by said bank as a part of its assets; that afterwards, on April 17, 1897, the said Bank of Oarterville went into liquidation and transferred all its assets to the First National Bank of Oarterville; that said note with the other assets was transferred to the said First National Bank of Oarterville; that on the first day of May, 1897, said note of $2,164.35 was taken up by the Victor Mining Oo. and a new note for the same amount was executed by the Victor Mining Oo., and Dwight, Flanders and Drake, to the First National Bank of Oarterville, which bank still holds said note; that the property attached has been sold under the order of this court and the proceeds thereof stand in the place of the property.
“The court further finds that the purpose of the Victor Mining Company in executing said mortgage and said $5,164.35 note was to raise said sum of $3,000 to be used in sinking its shaft and taking up a stope in its mine, and not to secure the payment of any indebtedness,which it then owed to the Bank of Oarterville, and that the interpleader, Kane,, knew of such purpose; that no part of the said $3,000 agreed to be . advanced was to be paid until the interpleader returned from the Indian Territory and then, if everything was satisfactory to said Kane, the money was to be paid by him on orders from the Victor Mining Oo., and that no part of said $3,000 was ever deposited in said bank or set apart subject to-the order of the Victor Mining Company; that before Kane returned from the Indian Territory the property was attached by the plaintiff and other creditors and the contract in relation to said $3,000 between the interpleader and the Victor*681 Mining Company was never completed ox carried out; and that said note of $5,164.35, secured by said mortgage is to the extent of the sum of $2,164.35 fictitious and to that extent the said mortgage was without consideration, but that the Victor Mining Co., in the execution of the $5,164.35 note, made the amount thereof exactly equal to the two sums of $3,000 to be thereafter advanced to it by interpleader, and the sum of $2,164.35 which it owed to the Bank of Carter-ville; that at the time of the delivery of said mortgage to interpleader he agreed with the representative of the Victor Mining Co. that said Bank of Carterville would deliver up to the makers thereof the said note of $2,164.35, but the court finds that said bank refused to carry out said agreement and never did deliver up said note, but retained same and treated it as a part of the assets of said bank.”
The instruction, we think, unobjectionable in its enunciation.
We have examined the interpleader’s objections to other instructions given for the plaintiffs, but these we do not think tenable. It matters very little what the several theories were upon which the court was requested to consider the case since we think the judgment is the only one that could have been properly given in the case.
The interpleader contends that the findings of fact by the court were inconsistent and contradictory in that it found that the $2,164.35 indebtedness was included in the $5,000 mortgage note and that the latter note was fictitious as to such indebtedness. By recurring to the finding of the court it will be seen that it found that the defendant executed the $5,000 note and mortgage to secure the said indebtedness and the $3,000 to be advanced. It will be also seen that it was further found that the note representing the existing indebtedness was never canceled and surrendered and was never merged into the $5,000 note, and therefore the latter was fictitious as to the amount of the former. The evidence supports this conclusion.
The transaction was incomplete in the first instance. The defendant was to secure the mortgage which it proposed to give interpleader and if later on everything was found satisfactory it was to be coinpleted and made effective and binding. Before the completion of the transaction the plaintiffs had attached the property covered by the proposed mortgage and interpleader then declined to complete the same. It never was completed.
• The finding of the court was consistent and sufficient to support the judgment, which must be affirmed.