Home/Missouri Court of Appeals/Bailey v. Gilman Bank

Bailey v. Gilman Bank

74 S.W. 874, 99 Mo. App. 571, 1903 Mo. App. LEXIS 232
CourtMissouri Court of Appeals
DecidedApril 27, 1903
StatusPublished
Cited by3 cases

This text of 74 S.W. 874 (Bailey v. Gilman Bank) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bailey v. Gilman Bank, 74 S.W. 874, 99 Mo. App. 571, 1903 Mo. App. LEXIS 232 (Mo. Ct. App. 1903).

Opinion

SMITH, P. J.

This is an action of replevin to recover the possession of .a non-negotiable promissory note. The case presented by the record is about this: The defendant Beckner. on August 26, 1901, by deed of that date, conveyed to plaintiff a certain tract of land for the expressed consideration of $2,300, subject to a deed of trust for $1,675 and the interest thereon. It is in effect conceded that defendant Beckner fraudulently misrepresented to plaintiff that there were no incumbrances on said tract of land except the $1,675 deed of trust and one year’s interest thereon, amounting to $134, and that by reason of such fraudulent misrepresentations plaintiff was induced to purchase it and to accept a deed therefor subject to said deed of trust and interest thereon for only one year when there was four years’ interest due'thereon, etc. As to the fraudulent misrepresentations, there seems to be no serious dispute.

Plaintiff executed and delivered to Beckner his note for $375 as a part of the consideration for the purchase price of the land. The note so given was secured by a deed of trust covering certain live stock and was pledged by Beckner to the defendant bank to secure a loan made by it to him.

[575]*575The defendants contend that even if the said promissory note was procured by the defendant Beckner of the plaintiff by fraudulent misrepresentation, the plaintiff is not entitled to recover, for the reason that he has not offered to put either the defendant bank or Beckner in statu quo; that is to say, he did not upon discovering the fraud promptly rescind or offer to rescind his contract, or offer to reconvey the right acquired by him under the Beckner deed. It is admitted that under the general rule that one who would rescind must put the other party in statu quo, and this omission would be fatal to plaintiff’s right to recover were it not that the case falls within an exception to this general rule. Plaintiff contends that under the Beelmer deed nothing passed to him but a mere right to redeem the land — a right that was utterly and wholly valueless. The law is quite well settled that where a party seeking to rescind a contract of sale or purchase has received nothing of value thereon, it is not a condition precedent to his recovery that he return or offer to return, because in such case that would be an idle and useless ceremony that is never required by law. Poe v. Stockton, 39 Mo. App. 560; Compton v. Parsons, 76 Mo. 455; Brown v. Weldon, 27 Mo. App. 251; McCormick Machine Co. v. Brady, 67 Mo. App. 294; Thummel v. Dukes,, 82 Mo. App. 53; Murphy v. Gay, 37 Mo. 536; Bank v. Peck, 8 Kans. 660; Wicks v. Smith, 21 Kans. 412; Bassett v. Brown, 105 Mass. 551. The right acquired by plaintiff under the Beckner deed was no more than a right to redeem. Snyder v. Railroad, 131 Mo. l. c. 580. Whether or not this right was absolutely worthless was-an issue of fact touching which the evidence was not all one way.

There was some evidence which tended to prove that it was agreed between plaintiff and defendant Beckner at the time of the transaction of the sale and purchase that the land was of-the value of $2,300, and that as this amount exceeded that of the principal and inter* [576]*576est due on the deed of trust note by about fifty dollars, or, in other words, that that amount was the value of the right of plaintiff’s equity of redemption. But there was further evidence which tends to prove that the value of the land was much less than $2,300. Whether there was an agreement as to the value of the land, or, if so, what, that value was, is also a disputed question of fact. It follows from the foregoing observations that the question as to whether or not the plaintiff’s right to redeem was worthless, was one for the jury and not for the court. If such right was worthless, then the plaintiff was not required .to prove a timely offer to rescind as a condition precedent to his right to a recovery.

The plaintiff claims the right to maintain his action on the further ground that the te, after its execution and delivery, was rendered void by an alteration thereof. The nature and extent of such alteration will appear by reference to the following fac simile copy of the note itself:

[577]

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Bluebook (online)
74 S.W. 874, 99 Mo. App. 571, 1903 Mo. App. LEXIS 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-gilman-bank-moctapp-1903.