Farmers' Exchange Bank v. Crump

Missouri Court of Appeals

Farmers' Exchange Bank v. Crump

92 S.W. 724, 116 Mo. App. 371, 1906 Mo. App. LEXIS 148

CourtMissouri Court of Appeals

DecidedJanuary 30, 1906

StatusPublished

Cited by2 cases

This text of 92 S.W. 724 (Farmers' Exchange Bank v. Crump) 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

Farmers' Exchange Bank v. Crump, 92 S.W. 724, 116 Mo. App. 371, 1906 Mo. App. LEXIS 148 (Mo. Ct. App. 1906).

Pincite

Opinion

BLAND, P. J.

(after stating the facts). — The case was tried on a third amended petition which defendant moved to strike out on the ground that it was a departure from the original petition and substituted a new cause of action. The motion was overruled and defendant answered. Whatever variance, if any there was, between the original and third amended petitions was waived by the answer and by defendant going to trial on the petition as amended. [Sanguinett v. Webster, 153 Mo. 343, 54 S. W. 563; Sauter v. Leveridge, 103 Mo. [376]*376615, 15 S. W. 981; Scovill v. Glasner, 79 Mo. 449; Holt County v. Cannon, 114 Mo. l. c. 519, 21 S. W. 851; Walser v. Wear, 141 Mo. l. c. 462, 42 S. W. 928.]

By the contract of June 26, 1898, defendant agreed to pa.y the one hundred dollars due from Latham to Nesbit, the balance of the purchase money due Nesbit on the town lots. To the extent of this payment the contract inured to the benefit of Nesbit and there is no doubt that he as such beneficiary might sue on the contract in his own name to recover the one hundred dollars. [School District ex rel. v. Livers, 147 Mo. 580, 49 S. W. 507; Rothwell v. Skinker, 84 Mo. App. 169.] The right of Nesbit to sue and recover on the contract became fixed on the acceptance of the deed from him by defendant and could not be thereafter defeated by the failure of Latham to pay the interest that had accumulated on the school mortgage prior to December 1, 1898, or the back taxes on the town lots. [School District v. Livers, supra.] But it is contended that there was no assignment of Nesbit’s cause of action to the plaintiff bank. There was no written or formal assignment of the cause of action from Nesbit to the bank; but the deposit of the deed by Nesbit with the bank, under an agreement that the bank should receive the one hundred dollars in payment of Nesbit’s debt to it and deliver the deed to defendant and surrender up the collateral notes of Latham, was, in effect, an assignment sufficient to make the bank the real party in interest; being the real party in interest, the suit was properly brought in its name. [R. S. 1899, sec. 540.]

The evidence shows that the deed from Nesbit came into defendant’s possession on October 14, 1899. The court treated the date of the delivery of the deed as the date when the right of action accrued to the bank. We think, under all the evidence, this was a proper construction of the contract. The suit was commenced on January 2, 1904, less than five years from the date when the right of action accrued, therefore, it is not barred by the [377]*377five-year Statute of Limitations. Upon the whole'record, we think the judgment is for the right party and for the correct amount. It is therefore affirmed.

Nortoni, J., concurs. Goode, J., dissents.

Free access — add to your briefcase to read the full text and ask questions with AI

BLAND, P. J.

(after stating the facts). — The case was tried on a third amended petition which defendant moved to strike out on the ground that it was a departure from the original petition and substituted a new cause of action. The motion was overruled and defendant answered. Whatever variance, if any there was, between the original and third amended petitions was waived by the answer and by defendant going to trial on the petition as amended. [Sanguinett v. Webster, 153 Mo. 343, 54 S. W. 563; Sauter v. Leveridge, 103 Mo. [376]*376615, 15 S. W. 981; Scovill v. Glasner, 79 Mo. 449; Holt County v. Cannon, 114 Mo. l. c. 519, 21 S. W. 851; Walser v. Wear, 141 Mo. l. c. 462, 42 S. W. 928.]

By the contract of June 26, 1898, defendant agreed to pa.y the one hundred dollars due from Latham to Nesbit, the balance of the purchase money due Nesbit on the town lots. To the extent of this payment the contract inured to the benefit of Nesbit and there is no doubt that he as such beneficiary might sue on the contract in his own name to recover the one hundred dollars. [School District ex rel. v. Livers, 147 Mo. 580, 49 S. W. 507; Rothwell v. Skinker, 84 Mo. App. 169.] The right of Nesbit to sue and recover on the contract became fixed on the acceptance of the deed from him by defendant and could not be thereafter defeated by the failure of Latham to pay the interest that had accumulated on the school mortgage prior to December 1, 1898, or the back taxes on the town lots. [School District v. Livers, supra.] But it is contended that there was no assignment of Nesbit’s cause of action to the plaintiff bank. There was no written or formal assignment of the cause of action from Nesbit to the bank; but the deposit of the deed by Nesbit with the bank, under an agreement that the bank should receive the one hundred dollars in payment of Nesbit’s debt to it and deliver the deed to defendant and surrender up the collateral notes of Latham, was, in effect, an assignment sufficient to make the bank the real party in interest; being the real party in interest, the suit was properly brought in its name. [R. S. 1899, sec. 540.]

The evidence shows that the deed from Nesbit came into defendant’s possession on October 14, 1899. The court treated the date of the delivery of the deed as the date when the right of action accrued to the bank. We think, under all the evidence, this was a proper construction of the contract. The suit was commenced on January 2, 1904, less than five years from the date when the right of action accrued, therefore, it is not barred by the [377]*377five-year Statute of Limitations. Upon the whole'record, we think the judgment is for the right party and for the correct amount. It is therefore affirmed.

Nortoni, J., concurs. Goode, J., dissents.

Cite This Page — Counsel Stack

Bluebook (online)

92 S.W. 724, 116 Mo. App. 371, 1906 Mo. App. LEXIS 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-exchange-bank-v-crump-moctapp-1906.

Opinion

Related

Cite This Page — Counsel Stack