Binz v. Hyatt

CRAVES, J. Plaintiff, Fred Binz, brought suit in the circuit court of Buchanan county, against Calvin C. Hyatt and James N. Burnes, administrator of the estate of John R. Owens, deceased. Trial was had in that court in which plaintiff recovered as against both defendants for $9,192, and defendants appealed. The suit is bottomed upon the following written instrument, viz: ‘ ‘ To Fred Binz: “Having this day purchased of you an undivided one-half interest in the sausage works, and all personal property owned by the firm of Hoefer & Binz, in the city of St. Joseph, Missouri, and having paid for said property in ten certain bonds secured by a mortgage or deed of trust on the property of the Merchants Coal Company of Cincinnati, Iowa, said bonds being of the face value of one thousand dollars each, and being numbered from six to fifteen inclusive, maturing on the 27th day of November, 1913, and bearing interest at the rate of six per cent per annum, payable semiannually, I therefore, in compliance with our verbal agreement, — 304 — hereby guarantee that if said bonds shall not be paid at maturity, and if for that reason the mortgage or deed of trust-securing same shall be foreclosed, and the mortgaged property sold to satisfy said bonds, that I will be present at said sale and bid fifteen thousand dollars for the property secured by said mortgage or deed of trust. “Dated at St. Joseph, Missouri, this 12th day of December, 1894. “C. O. Hyatt, “J. R. Owens.” The record so far as the evidence is concerned, is short and no particular conflicts therein. Such parts of the evidence as require notice, will receive attention in the course of the opinion. The serious questions are (1) the construction to be given this written contract, and (2) the Statute of Limitations as to the estate of John R. Owens. I. That the contract is one of guaranty and is sub-' jeet to the rule of strict construction may be conceded. The whole controversy in this case turns upon the meaning of the word “maturity,” as it appears in the clause1 of the contract reading, “I, therefore, in compliance with our verbal agreement, hereby guarantee that if said bonds shall not be paid at maturity, and if for that reason the mortgage or deed of trust, securing same shall be foreclosed, and the mortgaged property sold to satisfy said bonds, that I will be present at said sale and bid fifteen thousand dollars for the property secured by said mortgage or deed of trust.” Plaintiff claims that the “maturity” in this clause mentioned is the maturity called for in the deed of trust, and not the date of the maturity of the bonds, as recited in the first part of the agreement. Defendants urge that the sale they were bound to attend was a sale after November 27, 1913, the date of the maturity of the bonds as expressed in the face of the bonds. — 305 — Thus the contention was sharply drawn. What is the meaning of the word “maturity” as used in the clause quoted above? The clause in the contract saying, “Maturing on the 27th day of November, 1913, and bearing interest at the rate of six per cent per annum, payable semiannually,” is merely descriptive of the bonds, as also are the words, ‘ ‘ Secured by a mortgage or deed of trust on the property of the Merchants Coal Company of Cincinnati, Iowa.” In other words, the recitals contained in the first part of the contract are merely descriptive of the bonds and the mortgage or deed of trust, with reference to which the parties were contracting. In order that there be a fair understanding of the case it will be necessary to summarize a little from the evidence. The bonds mentioned were not “carriers without luggage,” for in their face they refer specifically to the mortgage, and further contain a provision by which they can be paid before maturity and stop the interest, in this language: “The said Merchants Coal Company, however, reserving the right to pay off this bond at any time before maturity by paying the principal thereof with five per cent premium and all accrued interest to the date of such payment; giving notice of its intention to do so by publication in a newspaper of general circulation in the city of Cincinnati, Iowa, once each week, for four successive weeks prior to the date when payment will be made, and thereupon all interest thereon shall cease on the day designated in such notice as the day on which the same shall be paid. This bond is one of a series of fifteen bonds of like form and tenor, the payment of which is secured by a mortgage or deed of trust to R. A. Brown, trustee, bearing even date herewith and duly recorded, to which mortgage or deed of trust, and the provisions and conditions thereof, reference is hereby made. This bond shall — 306 — not become obligatory until the certificate hereon endorsed shall be signed by E. A. Brown, Trustee.” The mortgage or deed of trust which was introduced in evidence among other things provided: “In case default be made in the payment of interest on any of the said bonds, and such default shall continue for ninety days after demand duly made therefor, in the manner hereinbefore provided, then the principal, as well as the interest of all said bonds shall, at the election of the trustee, upon written notice by said trustee to the coal company, become and be at once due and payable, and be so held and deemed for the purpose of entry, sale and foreclosure in the manner hereinbefore provided, and for all other purposes whatsoever. Said notice to be given to the coal company by the trustee as herein provided may be given at the election of the trustee, but he shall not be bound to give same unless requested in writing by holders of one-fourth of the bonds secured by this mortgage or deed of trust then outstanding and unpaid, and unless indemnified as aforesaid.” According to the evidence, the trustee Brown, at the request of the bond-holders, proceeded in the Iowa court to foreclose the deed of trust, procure judgment of foreclosure as well as judgment for the full amount of the bonds and interest. The property was sold and brought but little more than the expenses of foreclosure and of the receiver appointed in that proceeding. Under the evidence the corporation executing the bonds is totally insolvent, and at this foreclosure sale the signers of the contract in suit did not appear and bid at all. It is conceded that this mortgage is an Iowa contract, and, bearing upon the question of maturity, the following Iowa statutes were in evidence: “Sec. 4557. "When a mortgage or deed of trust is foreclosed, the court shall render judgment for the entire amount found to be due, and must direct the mort — 307 — gaged property, or so much thereof as is necessary, to be sold to satisfy the same, with interest and costs. A special execution shall issue accordingly, and the sale thereunder shall be subject to redemption as in cases of sale under general execution. “Sec. 4558. If the mortgaged property does not sell for sufficient to satisfy the execution, a general execution may be issued against the mortgagor, unless the parties have stipulated otherwise.” In addition upon the back of each bond was the Trustee’s Certificate, in this language: ‘ ‘ Trustee’s Certificate. “This is to certify that this is one of a series of bonds numbered from one to fifteen, both inclusive, issued in conformity with and under the provisions qf the deed of trust or mortgage within named. “R. A. Brown,'Trustee.” Now by the terms of this contract the signers thereof obligated themselves to be present at a mortgage sale of property sold to satisfy these bonds, if the mortgage was foreclosed. There could be but one sale of property under a foreclosure of the mortgage. The court decreeing the foreclosure might direct separate sales of different species of property and at separate times, but this is rarely done, so that the parties to this contract in our mind had in view but one sale, and that a sale under a foreclosure of this mortgage. The bonds themselves refer to the mortgage, the trustee’s certificate on the back thereof makes specific reference to the mortgage, under the terms and powers of which the bonds were issued. Taking this contract from the four comers of the instrument itself and giving it a reasonable construction, we hold that the word “maturity” as therein used, has reference to the maturity of the bonds as provided for by the mortgage and the statutes of Iowa, above quoted, which are as much a — 308 — part of the mortgage, as if -written therein, for this mortgage is an Iowa contract. In onr judgment this is the only reasonable construction to be given this contract. The parties in the contract refer to both the bonds and the mortgage or deed of trust, and these instruments refer to each other. We must take the contract and the instruments referred to therein, and construe them all together to get the real meaning of this contract, and when this is done, it is apparent that they could have had in view the one sale to be had under the foreclosure of the mortgage, and a sale to be had at the maturity of the bonds as said maturity is provided for by the mortgage. We therefore hold the first contention of the appellants to be not well founded. A very similar case is found in Stickney v. Evans, 127 Mass. 202. II. We come now to the Statute of Limitations as urged by the Owens estate. John R. Owens died in July, 1899; James N. Burnes was appointed administrator about August 1, 1899, and duly published notice of the grant of his letters of administration as required by law; this notice contained the usual provision as to the allowance of claims and stated that all claims not presented within two years would be barred. The administrator further charged by way of answer, and the facts showed, that more than two years had run from the date of the letters of administration. The sale under the foreclosure proceeding occurred October 18, 1902, under a decree of foreclosure of date September 9, 1902. This suit was filed February 19, 1903. The foregoing are sufficient of the facts for this proposition. The liability under the contract is a contingent one. It could not arise until the contingency had happened, to-wit, the foreclosure sale and the failure of Hyatt .and Owens to be present and bid $15,000 thereat. It is not a claim where there is a fixed liability, the maturity of — 309 — which might reach beyond the period of this special Statute of Limitations, but it is a claim where there is only a contingent liability, which liability might never arise. 1'n such cases the statute relied upon by appellant, section 185, Revised Statutes 1899', does not begin to run until the liability under the contract becomes fixed by the happening of the contingency. The statute bars ordinary demands, but not demands which arise under the contract pleaded in this case. [State ex rel. v. Tittmann, 134 Mo. l. c. 168; Tenny v. Lasley, 80 Mo. l. c. 668; Burton v. Rutherford, 49 Mo. l. c. 258; Taylor v. Priest, 21 Mo. App. l. c. 687; Morgan v. Gibson, 42 Mo. App. l. c. 244.] In the case at bar there was no liability until October 18,1902, and no claim could have been presented prior to "that date; the authorities above cited, as well as others in this State, are to the effect that the statute would not begin to run, in a case of this kind, until October 18, 1902, the date upon which there became a fixed liability under this contract. It therefore follows that .the action is not barred as to the Owens estate. There are no further serious contentions made by counsel for appellants, so that from what has been said we conclude that the judgment of the circuit court should be affirmed, and it is so ordered. Brace, G. J., and Valliant, J., concur; Lamm, J., not sitting.