Zuendt v. Doerner

Missouri Court of Appeals

Zuendt v. Doerner

73 S.W. 873, 101 Mo. App. 528, 1903 Mo. App. LEXIS 415

CourtMissouri Court of Appeals

DecidedMarch 31, 1903

StatusPublished

Cited by1 cases

This text of 73 S.W. 873 (Zuendt v. Doerner) 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

Zuendt v. Doerner, 73 S.W. 873, 101 Mo. App. 528, 1903 Mo. App. LEXIS 415 (Mo. Ct. App. 1903).

Pincite

Opinion

BLAND, P. J.

1. The evidence in the record is insufficient to show that defendant acquired title to the note of March 4,1892, from her mother, Mrs. Seitz, the payee, and if the administrator of the estate of Mrs. Seitz was a party to this suit contesting the right of defendant to the note of July 8, 1895, given in place of the note of March 4, 1892, quite a different question would he presented for decision from the one that is before us.

Charles Seitz, the son of Louise Seitz, administered on the estate of his mother and had closed the administration by a final settlement before this suit was commenced. It can not be contended that he did not know of the existence of the note of March 4, 1892, during the time he was administering on the estate of his mother, and did not know that his sister (the defendant) had possession of it claiming it as her property. The close kinship of all the parties and their intimate relations with each other forbid any such inference. The evidence shows that Adelbert Zeundt, the maker of the note,, was told by his wife that defendant had the note and that he would in all probability have to pay it to her. '• With full knowledge of all the facts, and after final settlement of the estate of Mrs. Seitz had been made, he took up the note of March 4, 1892, by giving the one sued on and by the payment of $100, the difference in the principals of the two notes, to defendant. From these facts it is fairly inferable that it was understood among all the parties in interest that the note of March 4, 1892, should be the property of the defendant as a part or whole of her distributive share of the estate of her mother; if so, then she was at the least the equitable owner of the note. Richardson v. Cole, 160 Mo. 372, which in effect overrules Adey v. Adey, 58 Mo. App. 408, relied on by plaintiff. But whether this be true or not, the plaintiff and her husband by their conduct and dealings with defendant have recognized her as the owner of the note and induced her to part with [535]*535it and the twenty shares of shoe stock pledged as collateral security for its payment, and. to take in their place the note sued on by the counterclaim. Plaintiff, by such conduct on her part, and the maker of the note, Adelbert Zuendt, are estopped to deny defendant’s title to the note. Reynolds v. Kroff, 144 Mo. 433; State ex rel. v. Branch, 151 Mo. 622; Pitman v. Mining Co., 78 Mo. App, 438.

2. In respect to the plea of want of consideration, the evidence is all one way that the note of March 4, 1892, was surrendered up and cancelled in consideration of the new note and Zuendt’s check or draft for'$100 to make up the difference between the two. The surrender and cancellation of the old note was a good and sufficient consideration for the giving of the new one in lieu thereof. Meyers v. Van Wagoner, 56 Mo. 115; Siemans & Halske Electric Co. v. Ten Broek, 70 S. W. (Mo. App.) 1092.

In Wilson v. Eaton, 127 Mass. 174, the defendant, Annie Eaton, administered on her husband’s estate in 1871. On July 9, 1873, she filed her final account as administratrix, which was allowed by the probate court and by which it appeared that the estate was solvent and that after the payments of debts she had paid the next of kin their distributive shares thereof. No new assets afterwards came into her hands. Sometime in 1875, the plaintiff produced a promissory note for $1,000, dated January, 1867, payable on demand and signed by the intestate (Mrs. Eaton’s husband) and given by him to plaintiff for money loaned, and requested the defendant to pay the same. There were various indorsements of interest on the back of the note, and the following in the handwriting of plaintiff: ‘ ‘ Received payment in full upon the within. ’ ’ This indorsement was made by the plaintiff at the time he gave Eaton’s note to the defendant and took the note in suit in exchange therefor. The only consideration for the note was the surrender to the defendant of the note of the [536]*536intestate for the note in snit. It was held the surrender of the former note, whether that note was at the time of the surrender capable or incapable of being enforced at law, was sufficient to constitute a consideration for the new note.

In Hobson v. Hassett, 76 Cal. 203, it was held that the cancellation and surrender of the note of a corporation was a sufficient consideration to support a renewal note executed by its president in his individual name.

In Osborne & Co. v. Doherty, 38 Minn. 430, it was; held that the note of the defendant, executed and delivered by her to her husband’s creditor upon an agreement, which was carried out, that said creditor should surrender her husband’s past due paper, was a sufficient consideration for her obligation.

The surrender of the twenty shares of shoe stock of the par value of $2,000, hypothecated as security for the payment of the note, furnished a good consideration for the signature of plaintiff to the note as surety to her husband.

The judgment is affirmed.

All concur.

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BLAND, P. J.

1. The evidence in the record is insufficient to show that defendant acquired title to the note of March 4,1892, from her mother, Mrs. Seitz, the payee, and if the administrator of the estate of Mrs. Seitz was a party to this suit contesting the right of defendant to the note of July 8, 1895, given in place of the note of March 4, 1892, quite a different question would he presented for decision from the one that is before us.

Charles Seitz, the son of Louise Seitz, administered on the estate of his mother and had closed the administration by a final settlement before this suit was commenced. It can not be contended that he did not know of the existence of the note of March 4, 1892, during the time he was administering on the estate of his mother, and did not know that his sister (the defendant) had possession of it claiming it as her property. The close kinship of all the parties and their intimate relations with each other forbid any such inference. The evidence shows that Adelbert Zeundt, the maker of the note,, was told by his wife that defendant had the note and that he would in all probability have to pay it to her. '• With full knowledge of all the facts, and after final settlement of the estate of Mrs. Seitz had been made, he took up the note of March 4, 1892, by giving the one sued on and by the payment of $100, the difference in the principals of the two notes, to defendant. From these facts it is fairly inferable that it was understood among all the parties in interest that the note of March 4, 1892, should be the property of the defendant as a part or whole of her distributive share of the estate of her mother; if so, then she was at the least the equitable owner of the note. Richardson v. Cole, 160 Mo. 372, which in effect overrules Adey v. Adey, 58 Mo. App. 408, relied on by plaintiff. But whether this be true or not, the plaintiff and her husband by their conduct and dealings with defendant have recognized her as the owner of the note and induced her to part with [535]*535it and the twenty shares of shoe stock pledged as collateral security for its payment, and. to take in their place the note sued on by the counterclaim. Plaintiff, by such conduct on her part, and the maker of the note, Adelbert Zuendt, are estopped to deny defendant’s title to the note. Reynolds v. Kroff, 144 Mo. 433; State ex rel. v. Branch, 151 Mo. 622; Pitman v. Mining Co., 78 Mo. App, 438.

2. In respect to the plea of want of consideration, the evidence is all one way that the note of March 4, 1892, was surrendered up and cancelled in consideration of the new note and Zuendt’s check or draft for'$100 to make up the difference between the two. The surrender and cancellation of the old note was a good and sufficient consideration for the giving of the new one in lieu thereof. Meyers v. Van Wagoner, 56 Mo. 115; Siemans & Halske Electric Co. v. Ten Broek, 70 S. W. (Mo. App.) 1092.

In Wilson v. Eaton, 127 Mass. 174, the defendant, Annie Eaton, administered on her husband’s estate in 1871. On July 9, 1873, she filed her final account as administratrix, which was allowed by the probate court and by which it appeared that the estate was solvent and that after the payments of debts she had paid the next of kin their distributive shares thereof. No new assets afterwards came into her hands. Sometime in 1875, the plaintiff produced a promissory note for $1,000, dated January, 1867, payable on demand and signed by the intestate (Mrs. Eaton’s husband) and given by him to plaintiff for money loaned, and requested the defendant to pay the same. There were various indorsements of interest on the back of the note, and the following in the handwriting of plaintiff: ‘ ‘ Received payment in full upon the within. ’ ’ This indorsement was made by the plaintiff at the time he gave Eaton’s note to the defendant and took the note in suit in exchange therefor. The only consideration for the note was the surrender to the defendant of the note of the [536]*536intestate for the note in snit. It was held the surrender of the former note, whether that note was at the time of the surrender capable or incapable of being enforced at law, was sufficient to constitute a consideration for the new note.

In Hobson v. Hassett, 76 Cal. 203, it was held that the cancellation and surrender of the note of a corporation was a sufficient consideration to support a renewal note executed by its president in his individual name.

In Osborne & Co. v. Doherty, 38 Minn. 430, it was; held that the note of the defendant, executed and delivered by her to her husband’s creditor upon an agreement, which was carried out, that said creditor should surrender her husband’s past due paper, was a sufficient consideration for her obligation.

The surrender of the twenty shares of shoe stock of the par value of $2,000, hypothecated as security for the payment of the note, furnished a good consideration for the signature of plaintiff to the note as surety to her husband.

The judgment is affirmed.

All concur.

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73 S.W. 873, 101 Mo. App. 528, 1903 Mo. App. LEXIS 415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zuendt-v-doerner-moctapp-1903.

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