Stark v. Hicklin , 112 Mo. App. 419 ( 1905 )

GOODE, J.

(after stating the facts). — On reading the record one is forcibly impressed by its utter barrenness of any evidence to support either of the ingenious defenses pleaded in the answer. Not a syllable of evidence was put in to prove that any representations were made to Fowler as to the variety of the trees he bought; how recently they had been taken out of the ground or any other false representation or warranty. On the contrary the undisputed evidence shows that Morrison, agent of Stark Bros., had been selling trees in the neighborhood where Fowler lived and had this batch of trees left on his hands at the close of the season. He offered them to Fowler at a bargain and Fowler bought them after a full inspection. In fact they were in his possession some time before the contract in suit was executed. Fowler planted the trees on his land and cultivated them for several years before he sold the farm to Hicklin. Six letters written by Fowler beginning with one dated December 13, 1891, and ending with one dated January 25,1898, were put in evidence. In the first of these letters he asked a credit of $12.06 on his account, or ten per cent of his purchase, because he had helped Morrison, the agent, by taking the trees off his hands after the original purchasers (twenty-one different men, the letter says) had failed to take them. It seems this credit was allowed by the plaintiffs. That was shortly after the trees were purchased and in the letter Fowler spoke well of them and was jubilant over his prospective success in raising an orchard. Each of the letters was in reference to payments on the debt Fowler owed for the trees; and either proffered excuses for not paying or told about the failure of crops and promised when he would pay. We will copy the last two letters:

“Paragould, Arkansas, January 8,1898.

“Stark Bros. N. & O. Co., Louisiana, Missouri.

“Gentlemen:

Your favor dated Dec’r 1, ’97 but postmarked January 1st, just received, having been forwarded from my home, Salem, Mo., to me here. The October statement I did not receive, probably lost in the forwarding.

. “Well, I should say our crop was a failure. My wheat averaged about 4 bu. to the acre. I am down here trying to make something this winter so as to endeavor to make both ends meet. I will return home the first of next month.

“It is simply impossible for me to pay anything now, and you will greatly oblige me by accepting my note at two (2) years. Please draw one up and mail to me here care Hotel Loda and I will sign and return. All I want is time and will pull through.

“The No. of my orchard contract is 688.

“I am glad you did not place my acct. with a Collection Co. Kindly forward the note at once, and oblige,

“Yours,

. “N. B. Fowler.”

“Malden, Missouri, January 25, 1898.

“Stark Bros.

“Louisiana, Missouri.

“Gentlemen:

“Sometime ago I replied to your favor of Dec. 1st, last and expected an answer before this but none came.

“My home is at or near Salem, Mb., and I have an orchard on the 6 per cent plan. Now, owing to short crops and my trees not yet bearing I have not been able to pay any interest. You will do me a favor by allowing me to give you my note, for the interest, as you proposed-in your letter. I am down-here in the capacity of an agent for an oil mill and I will be all right after a while, I only want time. I would sell my farm if you can send me a buyer.

“I am going home to Salem the first of February, and will be at home all summer.

“Will be glad to hear from you, on receipt of this, at Paragould, Ark., care Hotel Loda.

“Yours truly,

“N. B. Fowler.

“My No. is 688.”

It is thus perfectly, apparent that Fowler, with whom plaintiffs made the contract, never thought he had been imposed on or defrauded, or that the trees were in any way below what they had been represented to be. In fact, while^there is some testimony against the character of the trees, the undisputed testimony shows that two hundred or more of them are alive and thrifty now. The instrument sued on constituted a lien, which was on the land when the defendant, Hicklin, bought the farm from Fowler. The instrument was recorded and imparted notice to him. We know of no rule of law by which Hicklin can set up that the trees were worthless, the original purchaser having kept them eight years without complaint. Hicklin’s main defense is that Fowler was imposed on and, therefore, the lien cannot be enforced against the land. The person to complain of that grievance was Fowler. Hicklin bought the land subject to the lien for the purchase price of the trees and cannot resist its enforcement. The deed Fowler made to him is not in evidence to show whether he personally assumed payment of the debt to the plaintiffs or not. Unless he did there can be no personal judgment entered against him. There is no defense to this action so far as plaintiffs’ enforcement of the lien against the land is concerned. The execution of the instrument sued on was not put in issue by a verified answer; but nevertheless the court, over plaintiffs’ objection, allowed a witness to testify that Stark Bros, name was not signed to it originally, but was added afterwards. This evidence was wholly inadmissible and very prejudicial.

The judgment is reversed and the cause remanded with a direction to the court below to' enter a decree for the plaintiffs enforcing the lien against the estate in the lands described, which was conveyed by Fowler to the defendant Hicklin.

All concur.