Sharp v. Garnet

Ellison, J. — The following statement is taken substantially from that prepared by defendant’s counsel (appellant here), as it gives a sufficient history of the ease and the facts connected therewith: In 1886 a syndicate composed of the defendant, Grarnett, Huling and Chapman, and Davidson Brothers, purchased of plaintiff a tract of land in Clay county, Missouri. They paid him part of the purchase money in cash and, for convenience, had the plaintiff convey the land to tho defendant, and the defendant executed to plaintiff for the unpaid purchase money his two notes, one for $3,500 and one for $1,750, bearing eight per cent.interest and secured the same by deed, of trust on the land. [413] Defendant held the land in trust for the members of the syndicate in the following proportions: One half interest for Huling and Chapman, one'fourth interest for Davidson Brothers, and one fourth interest for himself, and each of the parties in the syndicate was liable on the notes, and, as* between themselves, were liable in the same proportion as they were interested in the land. A short time after the purchase the defendant sold his interest in the land to said Huling and Chapman, the consideration of the sale being that said Huling and Chapman assumed and agreed to pay said notes and relieve defendant from all liability thereon, and defendant thereupon conveyed to said Huling and Chapman a three fourths interest in said land, being the one half interest he held in trust for them and the one fourth interest he sold them. Plaintiff was not a party to this agreement. At about the same time, in order to entirely rid himself of the title, he conveyed to Davidson Brothers the other one fourth interest which he held in trust for them. • The $3,500 note matured first, and just prior to the time of its maturity the plaintiff approached defendant in regard to its payment and the defendant informed him that he had sold his interest in the land to Huling and Chapman, and that they had assumed and agreed to pay both the notes, and that plaintiff could call upon them and Davidson Brothers for payment. When the $3,500 note became due plaintiff did present the same to Huling and Chapman and they paid it. After the payment of the $3,500 note and before the maturity of the $1,750 note, the plaintiff needed money badly, and went to Huling and Chapman to let them have the note at a discount. The parties finally agreed upon a discount of $600 and plaintiff indorsed and delivered the note to them, and they paid him its [414] face, less the discount. Afterwards said Huling and Chapman instituted a suit on the note against this plaintiff as indorser and defendant as maker, claiming that there was a balance' due thereon and that this plaintiff and defendant owed the same. This plaintiff; and defendant filed an answer in the case in which they set out all the material facts in relation to the purchase of the land by the syndicate and the proportion owned by each; the execution of the notes for unpaid purchase money, and that Huling and Chapman were liable on said notes; the sale of defendant Garnett to Huling and Chapman, and their assumption and agreement to pay the notes; that plaintiff Sharp had not indorsed the note to Huling and Chapman, but that they had simply paid the same as they were bound to do. After the filing of said answer there was a non-suit entered as to defendant Garnett, but judgment was rendered against this plaintiff and he paid same, which with costs amounted to $412.90. The answer after a general denial of the allegations of the petition, pleaded the facts as to the purchase of the land, the execution of the notes, the liability of Huling and Chapman on the notes, and their agreement and assumption with defendant to pay same, and that the note in evidence had in fact been paid by Huling and Chapman. The trial was before the court without a jury and the finding was for plaintiff for the amount paid by him in satisfaction of the judgment on the note rendered as above set forth, with six per cent, interest. Defendant appeals. The trial court has necessarily found that Huling and Chapman did not pay off the note, but that it was sold and indorsed by plaintiff; that coming to the hands of Huling and Chapman they instituted suit and obtained judgment thereon against this plaintiff as indorser. The plaintiff paid the judgment. This by [415] operation of law vested title in the note in plaintiff; with a right to recover from defendant as maker. We scarcely see how the court could have found otherwise. Nor do we see how the arrangement between the defendant and the other members of his syndicate concerning their interests- in the land purchase and the relation they bore to one another could affect this plaintiff. Plaintiff had the note of this defendant for the remainder of the purchase money, and it was plaintiff’s right and privilege to look to him only for payment. Sparks v. The Dispatch Co., 104 Mo. 541. And though Huling and Chapman agreed with defendant to assume payment of the note, plaintiff could not be compelled to accept them as payors. If he refused to accept them he would deal with them as indorsees. But defendant insists that this suit is not on the note which plaintiff as indorser has paid by paying the judgment rendered thereon. He insists that it is a suit on that judgment. In this we think he is clearly in error. The petition clearly states a case on a note which had been paid by an indorser, and such is the indorser’s proper remedy. Pers v. Kirkham, 46 Mo. 146. It sets.forth the facts which in law, by reason of his relation to the' note, entitles him to recover against this defendant. We discover no error in the case and affirm the .judgment. All concur.