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appears the petition was filed on the 19th AVERY 7, GOOD.
June, 1877. An affidavit and attachment (Supreme Court of Missouri, Division No. 1.
bond appear among the papers in that Feb. 27, 1893.)
case, but they have no file mark upon
them, showing when deposited with the ATTACHMCST-Writs--SERVICE BY PưBLICATION
clerk. On the 19th June, 1877, the day APFIDAVIT- COLLATERUL ATTACH,
00 which the petition was filed, the clerk 1. Where an affidavit in attachment sets forth all the facts necessary to obtain a writ
issued a writ of attachment, and on the and an order of publication, both the writ and
same day be made an order of publica. the order may be granted without the filing
tion, stating by way of recital that now of another affidavit.
conies the plaintiff in vacation, and “files 2. The facts that the affidavit does not her petition against the said defendant, state the venue, and is made nearly three and also an affidavit, stating, among othmonths before action brought, do not render er things, that the defendant is a nonresi. a judgment rendered thereon void upon collat- dent of the state of Missouri," etc. The eral attack, since these defects, if raised in the attachment suit, might have been obviated
affidavit is as follows: "Affidavit in at. by filing an amended affidavit.
tachmeut suit. Salina J. Morgan, Plaiu3. Where an affidavit sworn to in Indiana
tiff, vs. William H Reed, Delendant. At. states that the defendant “is not a resident tachment in civil actior, circuit court. of this state," and the affidavit is entitled in This affiant states that the plaintiff in the an action brought in Missouri, and is sworn to above-entitled cause has a just demand the same day that the plaintiff executes an
against the defendant therein, now due, attachment bond which states that he is about to begin an attachment suit in Missouri, the
and tbat the amount which this affiant affidavit will be deemed, on collateral attack,
believes the plainitff ought to recover after a sufficient statement that the defendant was allowing all just credits and set-offs is not a resident of Missouri.
thirty-eight hundred and fifty-seven and Appeal from circuit court, Henry coun.
35-100 dollars and thirty-five cents, and
that this affiant has good reason to bety: D. A. De Armond, Judge.
lieve, and does believe, that the defendEjectment by Angus C. Avery against ant, 'William H. Reed, is not a resident of Reuben Good. Defendant obtained judg
this state. ment. Plaintiff uppeals. Affirmed.
Salina J. Morgan, Afiant.
Subscribed and sworn to before me this Wm. O. Mead, for appellant. Saml. E. 31st day of March, A. D. 1877. [L. S.] Price and Jas. Parks & Sons, for respond- W A. Peebles, Notary Public." The iment.
pression made by the notarial seal discloses
these words: “Notary Public, Indiana. BLACK, C. J. This is an action of eject- Seal.” ment for 80 acres of land in Hepry county. 1. The affidavit to which the clerk refers William H. Reed is the common source of in his order of publication m:ist be the title. In 1884 the probate court of St. affidavit above set forth. It must, tbereClair county made an order directing the fore, have been filed with the petition, and public administrator to take charge of it is the affidavit on which the writ of at. the estate of said Reed, and in 1888 the ad- tachment was issued and the order of ministrator sold this land in Henry coun- publication made. As it sets forth all the ty, and the plaintiff became the purchas- facts necessary to obtain a writ of ater, and received a deed, dated the lith tachment and an order of publication, February, 1888. This is the plaintiff's title. there was no need of filing two affidavits. The defendant put in evidence a deed from The one was sufficient for both purposes. the sheriff of Henry county to Jason Burnett v. McClues, 92 Mo. 230, 4 S. W Blackford, dated the 18th April, 1878, Rep. 694. based npon a sale made by virtue of a spe- 2. The chief objections are that the afficial execution issued upon a judgment of davit is void as an affidavit in attacbthe circuit court of Henry county in favor ment, for these reasons: First, for want of Salina J. Morgan, guardian of Lewis of a statement of the venue; second, be. and Josepb Morgan, against said William cause it was made two months and twen. H. Reed, and a deed from Blackford and ty days before the commencement of the wife to Louis and Joseph Morgan. The suit; and, third, because it states that circuit court gave instructions to the the defendant was a nonresident of the effect that the administrator's deed and state of Indiana, and does not state that the sheriff's deed were both void, because he was a nonresident of this state. of alleged irregularities in the prior pro- As bearing upon all these questions, it ceedings. The sheriff's deed untedates the is proper to say here that the rule which proceedings had in the probatecourt, and, prevails in some states that an affidavit if that deed is valid, and conveyed the ti- in attachment cannot be amended does tle of Reed, then the judgment is for the not obtain in this state. An attachment right party, and it will be unnecessary to may be dissolved where the affidavit is consider the objections made to the ad- adjudged insufficient on motion filed for ministrator's deed. The suit of Salina J. that purpose, unless the plaintiff shall file Morgan. guardian, etc., against William a good and sufficient affidavit within the H. Reed, was commenced by attachment time allowed by the court, but, if the de. and notice to the defendant hy order offendant desires to put in issue the truth of publication. The defendant made no ap- the matters stated in the affidavit, he pearance. The objections to the sheriff's must do so by a verified plea in abatedeed are all based upon the alleged insuffi- ment. Sections 562,568, Rev.st. 1889. Unciency of the affidavit for attachment. der section 568 an affidavit may be amendFrom the papers and proceedings in that ed, either before or after a motion filed to case produced in evidence in this one it I quash the writ or to dissolve the attachment. Henderson 5. Drace, 30 Mo. 362; | ed affidavit. But that is not the question Mosgrove s. Mott, so Mo. 107, 2 S. W. Rep. here. The question bere is whether these 214. And this court has repeatedly held attacbment proceedings are roid because that the principle that judicial proceedings of the two months and twenty days that which are amendable are not void is ap- intervebed between the date of the affplicable to attachment atidavits. Har darit and soing out of the writ, and we dio v. Lee, 51 Mo. 211; Donnell v. Byern, 80 | have no hesitancy iu sa-ing that they are Mo. 332; Burnett v. MeClaey, 92 Mo. 230, not. 48. W. Rep. 694. An affidavit for an at- Reading the affidavit by itself and distachment wbich is defective in a matter connected from the other papers in tbe which is amendable is not yuid, but sim-case, there is some foundation for the ply voidable by the proper motion made clain that when it says the deiendant is in the attachment suit. Such defeets are a nou resident of tbis state it means a of no avail in a collateral proceeding like nooresident of the state of Inuiana.-the this. Now, the object of a statement of state in which the affidavit was signed the venge is to show by an inspection of and the oath administered. But it is euthe affidavit that it was made within the titled in the suit of Salina J. Morgan jurisdiction of the officer who adminis- against William H. Reed, and was signed tered the oath, and a defect in this respect and sworn to on the same day that the may be amended. Drake, Attachm. (6th attachment bond was executed by her and Ed.) 3 90e; Struthers v McDowell, 5 her soreties. The bond states that she, Neb. 431. Here tbe notarial seal discloses as guardian of Louis and Joseph Morgan, the fact that the oath was administered was about to commence a suit by attaebby a notary public in the state of Indiana; ment in the circuit court of Henry county, and, though no county is stated, still the Mo., against William H. Reed, and then presumption is that the affidavit was follow the statutory conditions. It is signed god the oath administered within therefore evident that the affidavit bas refhis local jurisdiction, for it is not to be erence to this suit about to be commenced presumed that he violated his official du- in this state, and, read in connection with ties. Parker V. Baker, 8 Paige, 428; the bond and petition, there can be do Barnard v. Darling. 1 Barh. Ch. 218; doubt but it means that defendant was a Young v Young, 18 Minn. 90, (Gil. 72.) nonresident of the state of Missouri. The This objection would not be well taken point is too technical tu deserve further on a motion to quash the attachment notice in a colla teral suit like this. The suit, and for much stronger reasons it is sheriff's deed is a good and valid con reynot well taken in a collateral proceeding ance of all of the title of William H. Reed, like this.
and, this being so, the plaintiff has no ti. As bearing upon the objection that the | tle whatever. The judgment is therefore proceedings are void because the writ was affirmed. All concur. not sued out until two months and twen. ty days after the date of the affidavit, Drakesays. “It is proper that an affidavit should be made as near as practicable at STATE BANK OF ST. LOUIS v. BARTLE the time of the institution of the suit; but
et al. it is believed to be a general practice to allow attacbments to issue on affidavits
(Supreme Court of Missouri, Division No. 1. made sone time before the issue of the
Feb. 27, 1893.) writ. * * If in any case there he such Res JUDICATA-PRINCIPAL AND SURETY-INDORSEdelay as fairly to induce the presumption
MENT--WAIVER. that the process of the court is abused or
1. A judgment against two defendants used oppressively, or that the ground of jointly, in a suit in which they are not adver attachment may not exist when the writ
saries, is not conclusive, as between them, in
regard to the matters litigated in the suit. is sued out, the whole proceeding may, on 2. The loss of collateral security through mution, be set aside. Culess, however, the negligence of the creditor is no defense to there are these strong features to warrant a suit by him against one
who is surety for the this peremptory disposition or the writ, debt, where at the time of such suit the damage the resort should be to a plea in abate
caused by such loss cannot be ascertained, be ment.” Drake, attachm. (6th Ed.) & 111.
cause dependent upon litigation still pending. In Grabam v. Bradbury, 7 Mo. 281, there
3. A written promise to pay a note of which was an interval of nine or ten days be
the promisor is indorser constitutes a waiver
by him of presentment, demand, notice, and tween the making of the affidavit and the
protest of the note. issuing of the writ, and on a motion to quash the writ it was urged that there
Appeal from St. Louis circuit court; might have been a change of residence dur- Jacob Klein, Judge. ing that time; but this court held that
Action by the State Bank of St. Louis the defendant must take advantage of the against William G. Bartle and B. F. Doran. change, if any, by a plea in abatement,
Plaintiff obtained judgment. Defendants for the plea would put in issue the truth appeal. Affirmed. of the atlidavit at the time of issuing the Smith & Harrison, for appellants. John writ. The following cases are to the same c. Chandler, for respondent. effect; McClapahan v. Brack, 46 Miss. 256, Wright v. Rugland, 18 Tex. 292. Here the MACFARLANE, J. This suit is in three time intervening is much longer than in counts, upon three promissory notes, the cases cited, and it may be that the at- against B. F. Doran, as maker, and Wil. tachment ought to have been dissolved | liam G. Bartle, as indorser. Defendant upon a timely motion made for that pur. Doran answered, but made no active depose, the plaintiff failing to file an amend- | fense. Defendant Bartle answered in seven
several defenses. Only one defense, made to the extent he is thereby injured. Tay. at the trial, applied to all the votes, and
Jeter, 23 Mo. 250; Brandt, Sur. SS which may be stated, in substance, as fol- 384-387; Kemmerer v. Wilson, 31 Pa. St. lows: That defendant Bartle indorsed 110; Pickens v. Yarborough, 26 Ala. 417; the notes sued on as security for Doran. Grisard v. Ainson, (Ark.) 6 S. W. Rep. 906. That Doran, as collateral security, deliv- 2. The deed of trust was void, except beered to plaintiff a note for $20,000 and two tween the parties thereto, and purchasers deeds of trust to secure the same,-one on and incumbrancers with notice thereof, unlani in Cooper county, and one on land in til duly recorded. The duty, then, clearly Morgan county. The plaintiff agreed to devolved upon plaintiff, if the deed was in. safely hold, keep, and manage soch collat- | trusted to it for the purposes charged in erals, for the protection of him as surety, the answer, to see that it was recorded, as well as for its own security. That the and gisen full force and effect. If it negplaintiff neglected to have said deeds re. lected this duty, and defendant was himcorded, as its duty required, for more than self without fault or neglect, he, as surety, a year after their execution and delivery. should be exonerated to the extent of the That the Central National Bank of Boone- injury. Brandt, Sur. $ 389, and cases cited; ville commenced a suit in the circuit court Wulff v. Jay, L. R. 7 Q. B. 756; 2 White of Cooper county against said State Bank, & T. Lead. Cas. Eq. 309; Burr v. Boyer, 2 Bartle, and Doran, charging that, in reli- Neb. 265. ance on the apparently unincumbered real 3. Again, it is insisted that, since the estate of Doran, in Cooper county, it had proceedings and judgment of the circuit extended him credit, as an active trader | court of Cooper county, in favor of the in cattle, to an amount equal to the value Central National Bank, and against the of the said land, and the existence of the parties to this suit, found and adjudged deed of trust thereon was unknown to it. that said deed of trust was fraudulently That said deed of trust was with held from kept from the record, under an agreement the record, pursuant to a fraudulent agree- and collusion of said parties, therefore ment between the State Bank, Bartle, and defendant Bartle, as between himself and Doran not to record it, so that the credit plaintiff, the State Bank, is conclusively of Doran should not be impaired. That bound by said judgment, and cannot call withbolding the deed from the record, and it in question in his defense to this suit. concealing its existence, misled said Cen- It will be observed that in the suit of said tral Bank to give him credit. That it had | Central Bank all the parties to this suit obtained judgment on notes for money so were defendants. It might well be that, loaned for $21,225.50, aud prayed that said as to the rights of other creditors of Dodeed of trust be canceled, and said lands ran, the State Bank and Bartle would subjected to the payment of said judg- both be bound by the individual act or mient. That the bank and Bartle answered | omission of either, and, as between themsaid petition, and denied its allegations, selves, the one committing the wrong or and, upon a trial, judgment was rendered neglect would be liable over to the other. postponing tbe lien of said deeds of trust Tbe rule, therefore, is that, when the par. to the lien of said judgment. And that ties to a suit were nut adversaries, under said State Bank and Bartle appealed from the pleadings the judgment against them said judgment. The answer then charges jointly does not conclude either, so as to that, as between the State Bank and de- prevent bim from showing, in a contest fendant Bartle, the facts are that said col- between themselves, that the obligation
laterals were lost, wholly by the negli- should be borne by the other. McMahan • gence of plaintiff, said State Bank, io care- v. Geiger, 73 Mo. 148; Freem. Judgm. $ 158.
lessly failing to record said deed, in viola- 4. By his answer, Bartle states that • tion of its agreement and duty to defendant both he and plaintiff had appealed from Bartle, as surety to defendaut Duran. On the judgment of the Cooper county circuit the trial, the court, on objection by de- court postponing the deed of trust to the sendants, refused to admit any evidence on judgment of said Central Bank to the this defense, and, on its owo motion, in- supreme court of the state, where structed the jury to fod for the plaintiff the case is still pending. The answer on each count of the petition. The third charged that, “if the claim of the Central count was on a note made by Doran for National Bank sbould be held by the su$6,500, dated December 20, 1886, påyable to preme court to be prior and superior to Bartle on demand, and indorsed and deliv- the lien of the deed of trust, then it would ered to plaintiff. On this note, over the become su by reason of the negligence of indorsement by Bartle, was written a the State Bauk.” It appears from this waiver of presentment, demand, notice, allegation that the loss of the security and protest. The answer to this count de- afforded by the deed of trust is not yet nied that indorsement.
fixed and determined, but that the ques1. If the deed of trust was delivered to tion is still contested by both plaintiff and plain tiff, as culla teral security for the defendant Bartle. As will be seen from votes upon which defendant Bartle was the authorities cited on other points, the accommodation indorser, with a view, as loss of collaterals, by the negligence or charged in the answer, of protecting the wrong of the creditor, does not have the indorser, as well as affording additional effect of discharging the surety altogether, security to plaintiff, then it became its but only to the extent of the loss incurred. duty to carefully and faithfully perform all It is very clear, then, that the defense to acta necessary to make the collateral se- there notes, charging the loss of the secucurity available. This duty it owed to the rity by reason of the negligence of plainsurety, and, failing in it, by which the col- tiff, is premature. The right of defendant lateral is lost, the surety will be discharged to exoneratiou depends upon his actual
logs from a negligent or fraudulent failure fendant sold the lots to a third person, with to record the deed. Until, then, the loss of
whom he had been negotiating before he sent the security is conclusively settled, and
the telegram. Held, that the telegram did not the extent of the injury therefrom can be
constitute an absolute agreement to sell the ascertained, tbis defense capnot be main.
land. tained, no more than could a suit for dam- Appeal from St. Louis circuit court; D. ages for the neglect.
D. Fisher, Judge. 5. It was shown by defendant Bartle Action by Rochester Ford against that the written waiver of presentment, Charles E. Gebhardt and others for specific demand, notice, and protest on the $6,500 performance. Defendants obtained judg. note was in the handwriting of Mr. Par. ment. Plaintiff appeals. Affirmed. sons, president of plaintiff bank. He testified ibat it was written with the knowl | Moss, for respondents.
Silas B. Joves, for appellant. Cbas. L. edge and consent of defendant Bartle. Defendant testified that the role had no BRACE, J. This is an action to enforce such indorsement on it when delivered to the performance of an alleged contract for the bank, and he knew nothing about the sale of two vacant lots in the city of when it was made. Plaintiff tlien intro- St. Louis. The trial court upon the hearduced two written contracts between it ing dismissed the bill, and rendered judg. and Bartle, one dated in February, 1888. iment for the defendants, from which the and the other in June of the same year. plaintiff appeals. The former provided for the sale of the The evidence tends to prove that the de. lands in Cooper county under deeds of fendant Charles E. Gebhardt was at one trust, the purchase thereof by the bank, time the owner of the lots. That he is a and conveyance by it to Barule upon pay- | photographer, living and doing business ment of said potes. Said agreements bad in Mempbis, Tenn. That in tbe same city the following stipulations: “And the said | resided a Dr. Pool, who also owned some William G. Bartle agrees that he will pay | lots in the same block. That the plaintiff, said notes, upon which he is endorser, who is an attorney in the city of St. Louis, as aforesaid, at such time or times as the was employed by Gebhardt and Pool to said association shall cail for the payment perfect their title to said lots. In doing of the same. "The intention of this so he became the purchaser of them at a agreement being
* to secure the tax sale, and took a tax deed to the lots payment of the indebtedness of said Do
in his owo name, the title to be held in ran to said association from said William trust for the benefit of his clients. That G. Bartle upon his indorsements afore- their title was supposed by them to be desaid." The preamble to the contract had fectire in some respects. For his services already recited that Bartle was indorser | in clearing the title to all the lots Dr. Pool on all these notes. This contract was seems to have paid him by conveying to signed by Bartle and the bank. Mr. Bar- hiin one of his (Pool's) lots. It seems at tle then testified that, when these con- this time the defendant Gebhardt was intracts were signed by him, he knew the debted on account to his codefendant bank held the $6,500 note, and that it was Somerville, who was a dealer in photog. one of the notes referred to in the con. rapher's supplies in the city of St. Louis, tract. The court thereupon held that vi- and that Gebhardt directed Ford to conder the plendings, which only put in issue vey his two lots to Somerville, who at the the waivery indorsed on the note, defend- time was absent from the city, wbich he ant could not go behind this agreement to accordingly did; and that afterwards, show what claim the bank had been mak- through Ford's agency, a quitclaim deed ing against him in relation to that note. from another party to Somerville was ob.. The court instructed the jury to find for tained. That Sonierville held the title plaintiff the amount due on said note. We thus conveyed to him with the intention think the court ruled correctly. The issue or some sort of understanding that when was whether or not defendant had waived the lots were sold Gebhardt was to have Gemand and notice. The unconditional whatever the excess of the proceeds up promise to pay this note, which is stipulat- such sale might be after his indebtedness ed in the written contract, and which de- was paid. In this situation of affairs, on fendant admits he made, is of itself an im- the 9th of June, 1890, Sumerville wrote plied waiver of demand and notice. from St. Louis to Gebhardt at Mempbis. This promise is binding on Bartle, and Tenn., a letter containing a statement of "removes entirely the effect of any negli- Gebhardt's indebted oess to him, amount. gence in making ihe demand, or in giving | ing in all to $645.95, and proposing to setthe notice." Salisbury v. Renick, 44 Mo. tle the same, and take the property at $8 558; Sigerson s. Mathews, 20 How. 496; per foot, and to send him a draft on New Harness v. Association, 46 Mo. 359. Judg- York for the difference, a mounting to $154.ment a tiirmed. All concur.
65. On the next day (the 10th) Somerville wrote Gebhardt another letter, in which he says: “In writing you last even.
ing I overlooked the charge for in vestigatFORD 1. GEBHARDT et al.
ing title," etc. “If I remember right, the
same was $20, which should be deducted (Supreme Court of Missouri, Division No. 1.
from our offer," etc. On the 17th of June Feb. 27, 1893.)
plaintiff called on Somerville in regard to VENDOR AND Vendee_CONTRACT OF SALE. Gebhardt's lot, and next day (the 18th)
Plaintiff made defendant an offer for wrote Dr. Pool, at Memphis, a letter, in his land to which defendant replied by tele- which he says: "Mr. Somerville told me zram, “Will accept if not sold otherwise.” De that he held these lots as security for
debt from Gebhardt.
Suppose (Sumer ville) bad written to Gebhardt, you ask Gebhardt if he wants to sell at and was then expecting an answer from $9.00 a foot, and, if so, perbups I might him, and that he would not swear tbat take those two lots also.
Sumer- Mr. Somerville said “Yes, or “It is all ville wants to get his money, and I sup- right,” in response to his proposition, but pose you do also,-tbat is, the amount that he “may have said nothing. due you on account of Gebhardt's share Mr. Somerville testified, in substance, of my fee; and this might be a way of pas. that “when Mr. Ford came in there with ing Gebhardt's debts and leaving bim a the telegram, he showed it to me, or read surplus. I do not know just how inuch it to me. I said, I suppose, it was all Somerville's claim is. If Gebhardt wants right; that I had been expecting to get a to sell now, please let me know.
letter from Mr. Gebhardt for some time. If Gebhardt wants to sell, let him make I did not agree to the sale, but referred me an offer in writing.” On the same day | Mr. Ford to Mr. Gebhardt.” After this in(the 18th) Gebhardt wrote a letter to Som- terview, on the same day, he wrote Mr. erville in answer to his letters of the 9th Ford the following letter: “June 19th, and 10th, in which Gebhardt says: “I re. 1890. Mr. R. Forid, Room 119, Laclede ceived both your favors in regard to the Building, City-Dear Sir: Referring to the lots. Of course I have to abide by your lots 8 and 9 on Vernon avenue, would say agreement with Furd, but they were only before selling them wish to make some entitled to one third of the price that I get, | further inquiries, and possibly I will conand selliog at $8.00 would only entitle him clude to buy them from Mr. Gebhardt myto $133.00. I would have answered 8000- self, which right I reserve. However, er, but thought I could arrange to hold will give you a decided answer as soon as on to the lots; but business is so dull that I hear from him in response to a letter I can't get any money together; neither written several days ago, and also a letter can I collect what is due me. I think and by to-day's mail. Yours, truly,.).C. Som. Huppose you will see it in tbat light, as erville. And to Mr. Gebhardt the follow. you buy the lots yourself, you ought not ing letter: "June 19th, 1890._Messrs. Gehto charge me with the abstract, as nat- hardt & Co., Memphis, Tenn.-Gents: urally a man buying property is going to Your telegram just to hand, stating offer look up the title.
I need the mon- made by Mr. Ford, who at the same mo. ey by Saturday, the 21st, and you will ment called on us with telegraro from oblige me if you attend to this immediate- you, accepting his offer of $900.00. He ly, and send me draft. If anything has says he will have the title run down, and happened that will prevent sending the buy it at that price. Of course we will money, telegraph me immediately, so I either sell it to bitn at $900.00 or buy it can make arrangements bere yet. Please ourselves, as I think you will allow us don't disappoint me. This letter was this option. However, if you wish us to put in the post office at Memphis on tbe sell it to him, you had better write him, 18th of June, and mailed that evening at 6 instructing that he pay us the amount of P. M. from that office. The next moruing account as per our last two letters; and Dr. Pool called on Gebhardt, and showed of course the guaranty of $166.66 will have him the plaintiff's (Ford's) letter, and as to be deducted from price. Yours, truly, a result of their interview the following J. C. Somerville. On the morning of the telegram was sent by Gebhardt to Ford : 20th Somerville received Gebhardt's letter "Memphis, Tenn. 19th. To Rochester of the 18th, and immediately wrote Mr. Ford, Laclede Building, St. L.: Will ac- Ford the following letter: “Dear Sir: This cept $900 cash if not sold otherwise. See morning I have a letter from Mr. GebSomerville at once. Show telegram. Geb- hardt, dated June the 18th, accepting our hardt." On the receipt of this telegram settlement and cffer to him for his lots; by plaintiff on the 19th of June he went to and as he states he is in urgent need of the see Somerville, and showed him the tele- mones, and requests us to send N. Y. draft gram. At this time he had not received immediately, we do so to-day. I thought Gebhardt's letter of the 18th, but about it best to advise you of this at once, so as the same time received the following tele- not to cause you any trouble or inconvengrain from bim: "June 19th. J. C. Som- ience. Yours, truly, J. C. Somerville. erville, St. Louis: Letter from Ford to- As indicated in this letter, the draft was day offers nine hundred for lots. See him. sent by Somerville to Gebhardt, and the Gebhardt.” In regard to this interview affair closed up between them on the basis the plaintiff testifies: “I told Mr. Somer- of Somerville's letter of the 19th to bim. ville that I would take the lots at this Ou the same day (the 20th) Ford says he price, and would pay Mr. Sumerville the received both of Somerville's letters of the amount due to him by Mr. Gewhardt, and | 19th and 20th. He immediately went to would pay to Dr. Pool the amount due see Somerville, claimed that he had purby Gebhardt to Pool, which Somerville chased the property, offered to comply had assumed, and would pay the balance with his proposition, and demanded that to Gebhardt; and that I would have the the contract with him be carried out; title examined; after which I left.
and on the same day made a like demand Somerville said either. Yes,' or 'All right.' formally by letters addressed to and reI asked him how much Gebhardt owed ceived by both Somerville aud Gebhardt, him, and he told me I could learn that and, upon their refusal to comply with from Gebhardt. Further than that I think this request, instituted this suit. Mr. Somerville did not say anything.” 1. In order to entitle the plaintiff to the On cross-examination, in regard to this relief sought in tbis case it devolved upon interview, he testified that Mr. Somerville him to show a contract actually conclud. did not make known to him that he led between him and Gebhardt and Somer.