AVERY v. GOOD.

(Supreme Court of Missouri, Division No. 1. Feb. 27, 1893.)

ATTACHMENT-WRITS-SERVICE BY PUBLICATIONAFFIDAVIT COLLATERAL ATTACK.

1. Where an affidavit in attachment sets forth all the facts necessary to obtain a writ and an order of publication, both the writ and the order may be granted without the filing of another affidavit.

2. The facts that the affidavit does not state the venue, and is made nearly three months before action brought, do not render a judgment rendered thereon void upon collateral attack, since these defects, if raised in the attachment suit, might have been obviated by filing an amended affidavit.

3. Where an affidavit sworn to in Indiana states that the defendant "is not a resident of this state," and the affidavit is entitled in an action brought in Missouri, and is sworn to the same day that the plaintiff executes an attachment bond which states that he is about to begin an attachment suit in Missouri, the affidavit will be deemed, on collateral attack, a sufficient statement that the defendant was not a resident of Missouri.

Appeal from circuit court, Henry county: D. A. De Armond, Judge.

Ejectment by Angus C. Avery against Reuben Good. Defendant obtained judgment. Plaintiff appeals. Affirmed.

Wm. O. Mead, for appellant. Saml. E. Price and Jas. Parks & Sons, for respondent.

BLACK, C. J. This is an action of ejectment for 80 acres of land in Henry county. William H. Reed is the common source of title. In 1884 the probate court of St. Clair county made an order directing the public administrator to take charge of the estate of said Reed, and in 1888 the administrator sold this land in Henry county, and the plaintiff became the purchaser, and received a deed, dated the 11th February, 1888. This is the plaintiff's title. The defendant put in evidence a deed from the sheriff of Henry county to Jason Blackford, dated the 18th April, 1878, based upon a sale made by virtue of a special execution issued upon a judgment of the circuit court of Henry county in favor of Salina J. Morgan, guardian of Lewis and Joseph Morgan, against said William H. Reed, and a deed from Blackford and wife to Louis and Joseph Morgan. The circuit court gave instructions to the effect that the administrator's deed and the sheriff's deed were both void, because of alleged irregularities in the prior proceedings. The sheriff's deed antedates the proceedings had in the probate court, and, if that deed is valid, and conveyed the title of Reed, then the judgment is for the right party, and it will be unnecessary to consider the objections made to the administrator's deed. The suit of Salina J. Morgan, guardian, etc., against William H. Reed, was commenced by attachment and notice to the defendant by order of publication. The defendant made no appearance. The objections to the sheriff's deed are all based upon the alleged insufficiency of the affidavit for attachment. From the papers and proceedings in that case produced in evidence in this one it

appears the petition was filed on the 19th June, 1877. An affidavit and attachment bond appear among the papers in that case, but they have no file mark upon them, showing when deposited with the clerk. On the 19th June, 1877, the day on which the petition was filed, the clerk issued a writ of attachment, and on the same day he made an order of publication, stating by way of recital that now comes the plaintiff in vacation, and "files her petition against the said defendant, and also an affidavit, stating, among other things, that the defendant is a nonresi. dent of the state of Missouri," etc. The affidavit is as follows: “Affidavit in attachment suit. Salina J. Morgan, Plaintiff, vs. William H Reed, Defendant. Attachment in civil action, circuit court. This affiant states that the plaintiff in the above-entitled cause has a just demand against the defendant therein, now due, and that the amount which this affiant believes the plainitff ought to recover after allowing all just credits and set-offs is thirty-eight hundred and fifty-seven and 35-100 dollars and thirty-five cents, and that this affant has good reason to believe, and does believe, that the defendant, William H. Reed, is not a resident of this state. Salina J. Morgan, Affiant. Subscribed and sworn to before me this 31st day of March, A. D. 1877. [L. S.] W A. Peebles, Notary Public. The impression made by the notarial seal discloses these words: "Notary Public, Indiana. Seal.

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1. The affidavit to which the clerk refers in his order of publication must be the affidavit above set forth. It must, therefore, have been filed with the petition, and it is the affidavit on which the writ of at tachment was issued and the order of publication made. As it sets forth all the facts necessary to obtain a writ of attachment and an order of publication, there was no need of filing two affidavits. The one was sufficient for both purposes. Burnett v. McCluey, 92 Mo. 230, 4 S. W Rep. 694.

2. The chief objections are that the affidavit is void as an affidavit in attachment, for these reasons: First, for want of a statement of the venue; second, because it was made two months and twenty days before the commencement of the suit; and, third, because it states that the defendant was a nonresident of the state of Indiana, and does not state that he was a nonresident of this state.

As bearing upon all these questions, it is proper to say here that the rule which prevails in some states that an affidavit in attachment cannot be amended does not obtain in this state. An attachment may be dissolved where the affidavit is adjudged insufficient on motion filed for that purpose, unless the plaintiff shall file a good and sufficient affidavit within the time allowed by the court, but, if the defendant desires to put in issue the truth of the matters stated in the affidavit, he must do so by a verified plea in abatement. Sections 562, 568, Rev. St. 1889. Under section 568 an affidavit may be amended, either before or after a motion filed to quash the writ or to dissolve the attach

several defenses. Only one defense, made at the trial, applied to all the notes, and which may be stated, in substance, as follows: That defendant Bartle indorsed the notes sued on as security for Doran. That Doran, as collateral security, delivered to plaintiff a note for $20,000 and two deeds of trust to secure the same,-one on land in Cooper county, and one on land in Morgan county. The plaintiff agreed to safely hold, keep, and manage such collaterals, for the protection of him as surety, as well as for its own security. That the plaintiff neglected to have said deeds recorded, as its duty required, for more than a year after their execution and delivery. That the Central National Bank of Booneville commenced a suit in the circuit court of Cooper county against said State Bank, Bartle, and Doran, charging that, in reliance on the apparently unincumbered real estate of Doran, in Cooper county, it had extended him credit, as an active trader in cattle, to an amount equal to the value of the said land, and the existence of the deed of trust thereon was unknown to it. That said deed of trust was withheld from the record, pursuant to a fraudulent agreement between the State Bank, Bartle, and Doran not to record it, so that the credit of Doran should not be impaired. That withholding the deed from the record, and concealing its existence, misled said Central Bank to give him credit. That it had obtained judgment on notes for money so loaned for $21,225.50, and prayed that said deed of trust be canceled, and said lands subjected to the payment of said judgment. That the bank and Bartle answered said petition, and denied its allegations, and, upon a trial, judgment was rendered postponing the lien of said deeds of trust to the lien of said judgment. And that said State Bank and Bartle appealed from said judgment. The answer then charges that, as between the State Bank and defendant Bartle, the facts are that said collaterals were lost, wholly by the negligence of plaintiff, said State Bank, in carelessly failing to record said deed, in violation of its agreement and duty to defendant Bartle, as surety to defendant Doran. On the trial, the court, on objection by defendants, refused to admit any evidence on this defense, and, on its own motion, instructed the jury to find for the plaintiff on each count of the petition. The third count was on a note made by Doran for $6,500, dated December 20, 1886, påyable to Bartle on demand, and indorsed and delivered to plaintiff. On this note, over the indorsement by Bartle, was written a waiver of presentment, demand, notice, and protest. The answer to this count denied that indorsement.

1. If the deed of trust was delivered to plaintiff, as collateral security for the notes upon which defendant Bartle was accommodation indorser, with a view, as charged in the answer, of protecting the indorser, as well as affording additional security to plaintiff, then it became its duty to carefully and faithfully perform all acts necessary to make the collateral se curity available. This duty it owed to the surety, and, failing in it, by which the collateral is lost, the surety will be discharged v.21s.w.no.8-52

to the extent he is thereby injured. Taylor v. Jeter, 23 Mo. 250; Brandt, Sur. §§ 384-387; Kemmerer v. Wilson, 31 Pa. St. 110; Pickens v. Yarborough, 26 Ala. 417; Grisard v. Hinson, (Ark.) 6 S. W. Rep. 906. 2. The deed of trust was void, except between the parties thereto, and purchasers and incumbrancers with notice thereof, until duly recorded. The duty, then, clearly devolved upon plaintiff, if the deed was intrusted to it for the purposes charged in the answer, to see that it was recorded, and given full force and effect. If it neglected this duty, and defendant was himself without fault or neglect, he, as surety, should be exonerated to the extent of the injury. Brandt, Sur. § 389, and cases cited; Wulff v. Jay, L. R. 7 Q. B. 756; 2 White & T. Lead. Cas. Eq. 309; Burr v. Boyer, 2 Neb. 265.

3. Again, it is insisted that, since the proceedings and judgment of the circuit court of Cooper county, in favor of the Central National Bank, and against the parties to this suit, found and adjudged that said deed of trust was fraudulently kept from the record, under an agreement and collusion of said parties, therefore defendant Bartle, as between himself and plaintiff, the State Bank, is conclusively bound by said judgment, and cannot call it in question in his defense to this suit. It will be observed that in the suit of said Central Bank all the parties to this suit were defendants. It might well be that, as to the rights of other creditors of Doran, the State Bank and Bartle would both be bound by the individual act or omission of either, and, as between themselves, the one committing the wrong or neglect would be liable over to the other. The rule, therefore, is that, when the parties to a suit were not adversaries, under the pleadings the judgment against them jointly does not conclude either, so as to prevent him from showing, in a contest between themselves, that the obligation should be borne by the other. McMahan v. Geiger, 73 Mo. 148; Freem. Judgm. § 158. 4. By his answer, Bartle states that both he and plaintiff had appealed from the judgment of the Cooper county circuit court postponing the deed of trust to the judgment of said Central Bank to the supreme court of the state, where the case is still pending. The answer charged that, "if the claim of the Central National Bank should be held by the supreme court to be prior and superior to the lien of the deed of trust, then it would become so by reason of the negligence of the State Bank." It appears from this allegation that the loss of the security afforded by the deed of trust is not yet fixed and determined, but that the question is still contested by both plaintiff and defendant Bartle. As will be seen from the authorities cited on other points, the loss of collaterals, by the negligence or wrong of the creditor, does not have the effect of discharging the surety altogether, but only to the extent of the loss incurred. It is very clear, then, that the defense to these notes, charging the loss of the security by reason of the negligence of plaintiff, is premature. The right of defendant to exoneratiou depends upon his actual

loss from a negligent or fraudulent failure to record the deed. Until, then, the loss of the security is conclusively settled, and the extent of the injury therefrom can be ascertained, this defense cannot be maintained, no more than could a suit for damages for the neglect.

5. It was shown by defendant Bartle that the written waiver of presentment, demand, notice, and protest on the $6,500 note was in the haud writing of Mr. Parsons, president of plaintiff bank. He testified that it was written with the knowl edge and consent of defendant Bartle. Defendant testified that the note had no such indorsement on it when delivered to the bank, and he knew nothing about when it was made. Plaintiff then introduced two written contracts between it and Bartie, one dated in February, 1888. and the other in June of the same year. The former provided for the sale of the lands in Cooper county under deeds of trust, the purchase thereof by the bank, and conveyance by it to Bartle upon payment of said notes. Said agreements had the following stipulations: "And the said William G. Bartle agrees that he will pay said notes, upon which he is endorser, as aforesaid, at such time or times as the said association shall call for the payment of the same." "The intention of this agreement being *** to secure the payment of the indebtedness of said Doran to said association from said William G. Bartle upon his indorsements aforesaid." The preamble to the contract had already recited that Bartle was indorser on all these notes. This contract was signed by Bartle and the bank. Mr. Bar- | tle then testified that, when these contracts were signed by him, he knew the bank held the $6,500 note, and that it was one of the notes referred to in the contract. The court thereupon held that under the pleadings, which only put in issue the waivers indorsed on the note, defendant could not go behind this agreement to show what claim the bank had been making against him in relation to that note. The court instructed the jury to find for plaintiff the amount due on said note. We think the court ruled correctly. The issue was whether or not defendant had waived demand and notice. The unconditional promise to pay this note, which is stipulated in the written contract, and which defendant admits he made, is of itself an implied waiver of demand and notice. This promise is binding on Bartle, and "removes entirely the effect of any negligence in making the demand, or in giving the notice." Salisbury v. Renick, 44 Mo. 558; Sigerson v. Mathews, 20 How. 496; Harness v. Association, 46 Mo. 359. Judg ment affirmed. All concur.

FORD . GEBHARDT et al. (Supreme Court of Missouri, Division No. 1. Feb. 27, 1893.)

VENDOR AND VENDEE-CONTRACT OF SALE.

Plaintiff made defendant an offer for his land to which defendant replied by telegram, "Will accept if not sold otherwise." De

fendant sold the lots to a third person, with whom he had been negotiating before he sent the telegram. Held, that the telegram did not constitute an absolute agreement to sell the land.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by Rochester Ford against Charles E. Gebhardt and others for specific performance. Defendants obtained judg. ment. Plaintiff appeals Affirmed.

Silas B. Jones, for appellant. Chas. L. Moss, for respondents.

BRACE, J. This is an action to enforce the performance of an alleged contract for the sale of two vacant lots in the city of St. Louis. The trial court upon the hearing dismissed the bill, and rendered judg ment for the defendants, from which the plaintiff appeals.

The evidence tends to prove that the de fendant Charles E. Gebhardt was at one time the owner of the lots. That he is a photographer, living and doing business in Memphis, Tenn. That in the same city resided a Dr. Pool, who also owned some lots in the same block. That the plaintiff, who is an attorney in the city of St. Louis, was employed by Gebhardt and Pool to perfect their title to said lots. In doing So he became the purchaser of them at a tax sale, and took a tax deed to the lots in his own name, the title to be held in trust for the benefit of his clients. That their title was supposed by them to be defective in some respects. For his services in clearing the title to all the lots Dr. Pool seems to have paid him by conveying to him one of his (Pool's) lots. It seems at this time the defendant Gebhardt was indebted on account to his codefendant Somerville, who was a dealer in photographer's supplies in the city of St. Louis, and that Gebhardt directed Ford to convey his two lots to Somerville, who at the time was absent from the city, which he accordingly did; and that afterwards, through Ford's agency, a quitclaim deed from another party to Somerville was obtained. That Somerville held the title' thus conveyed to him with the intention or some sort of understanding that when the lots were sold Gebhardt was to have whatever the excess of the proceeds of such sale might be after his indebtedness was paid. In this situation of affairs, on the 9th of June, 1890, Somerville wrote from St. Louis to Gebhardt at Memphis. Tenn., a letter containing a statement of Gebhardt's indebtedness to him, amounting in all to $645.95, and proposing to settle the same, and take the property at $8 per foot, and to send him a draft on New York for the difference, amounting to $154.65. On the next day (the 10th) Somerville wrote Gebhardt another letter, in which he says: "In writing you last evening I overlooked the charge for investigating title," etc. "If I remember right, the same was $20, which should be deducted trom our offer," etc. On the 17th of June plaintiff called on Somerville in regard to Gebhardt's lot, and next day (the 18th) wrote Dr. Pool, at Memphis, a letter, in which he says: "Mr. Somerville told me that he held these lots as security for

If Gebhardt wants to sell, let him make me an offer in writing.' On the same day (the 18th) Gebhardt wrote a letter to Somerville in answer to his letters of the 9th and 10th, in which Gebhardt says: “I re. ceived both your favors in regard to the lots. Of course I have to abide by your agreement with Ford, but they were only entitled to one third of the price that I get, and selling at $8.00 would only entitle him to $133.00. I would have answered sooner, but thought I could arrange to hold on to the lots; but business is so dull that I can't get any money together; neither can I collect what is due me. I think and suppose you will see it in that light, as you buy the lots yourself, you ought not to charge me with the abstract, as naturally a man buying property is going to look up the title. I need the mon

ey by Saturday, the 21st, and you will oblige me if you attend to this immediately, and send me draft. If anything has happened that will prevent sending the money, telegraph me immediately, so I can make arrangements here yet. Please don't disappoint me." This letter was put in the post office at Memphis on the 18th of June, and mailed that evening at 6 P. M. from that office. The next morning Dr. Pool called on Gebhardt, and showed him the plaintiff's (Ford's) letter, and as a result of their interview the following telegram was sent by Gebhardt to Ford: "Memphis, Tenn. 19th. To Rochester Ford, Laclede Building, St. L.: Will accept $900 cash if not sold otherwise. See Somerville at once. Show telegram. Gebhardt." On the receipt of this telegram by plaintiff on the 19th of June he went to see Somerville, and showed him the telegram. At this time he had not received Gebhardt's letter of the 18th, but about the same time received the following telegrain from him: “June 19th. J. C. Somerville, St. Louis: Letter from Ford today offers nine hundred for lots. See him. Gebhardt." In regard to this interview the plaintiff testifies: "I told Mr. Somerville that I would take the lots at this price, and would pay Mr. Somerville the amount due to him by Mr. Geohardt, and would pay to Dr. Pool the amount due by Gebhardt to Pool, which Somerville had assumed, and would pay the balance to Gebhardt; and that I would have the title examined; after which I left. Somerville said either 'Yes,' or 'All right.' I asked him how much Gebhardt owed him, and he told me I could learn that from Gebhardt. Further than that I think Mr. Somerville did not say anything. On cross-examination, in regard to this interview, he testified that Mr. Somerville did not make known to him that he

(Somerville) had written to Gebhardt, and was then expecting an answer from him, and that he would not swear that Mr. Somerville said "Yes," or "It is all right," in response to his proposition, but that he "may have said nothing."

Mr. Somerville testified, in substance, that "when Mr. Ford came in there with the telegram, he showed it to me, or read it to me. I said, I suppose, it was all right; that I had been expecting to get a letter from Mr. Gebhardt for some time. I did not agree to the sale, but referred Mr. Ford to Mr. Gebhardt." After this interview, on the same day, he wrote Mr. Ford the following letter: "June 19th, 1890. Mr. R. Ford, Room 119, Laclede Building, City-Dear Sir: Referring to the lots 8 and 9 on Vernon avenue, would say before selling them wish to make some further inquiries, and possibly I will conclude to buy them from Mr. Gebhardt myself, which right I reserve. However, I will give you a decided answer as soon as I hear from him in response to a letter written several days ago, and also a letter by to-day's mail. Yours, truly, J. C. Som erville. And to Mr. Gebhardt the following letter: "June 19th, 1890. Messrs. Gebhardt & Co., Memphis, Tenn.-Gents: Your telegram just to hand, stating offer made by Mr. Ford, who at the same moment called on us with telegram from you, accepting his offer of $900.00. He says he will have the title run down, and buy it at that price. Of course we will either sell it to him at $900.00 or buy it ourselves, as I think you will allow us this option. However, if you wish us to sell it to him, you had better write him, instructing that he pay us the amount of account as per our last two letters; and of course the guaranty of $166.66 will have to be deducted from price. Yours, truly, J. C. Somerville." On the morning of the 20th Somerville received Gebhardt's letter of the 18th, and immediately wrote Mr. Ford the following letter: "Dear Sir: This morning I have a letter from Mr. Gebhardt, dated June the 18th, accepting our settlement and cffer to him for his lots; and as he states he is in urgent need of the money, and requests us to send N. Y. draft immediately, we do so to-day. I thought it best to advise you of this at once, so as not to cause you any trouble or inconvenience. Yours, truly, J. C. Somerville.” As indicated in this letter, the draft was sent by Somerville to Gebhardt, and the affair closed up between them on the basis of Somerville's letter of the 19th to him. On the same day (the 20th) Ford says he received both of Somerville's letters of the 19th and 20th. He immediately went to see Somerville, claimed that he had purchased the property, offered to comply with his proposition, and demanded that the contract with him be carried out; and on the same day made a like demand formally by letters addressed to and received by both Somerville aud Gebhardt, and, upon their refusal to comply with this request, instituted this suit.

1. In order to entitle the plaintiff to the relief sought in this case it devolved upon him to show a contract actually concluded between him and Gebhardt and Somer