Thompson v. Lindsay. do this just as you would do if there was a loan on the property, the man making the loan, holding the insurance policies. Yours truly, That letter was unanswered and plaintiff testified he never saw it until after the foreclosure sale. He then found it opened in a bundle of other papers relating to the matter in his desk in his bank after his return from a prolonged absence. There is some testimony, however, indicating that he was in St. Joseph a day or so after March 16th. On March 21, 1907, Mr. Lindsay sent the mentioned warranty deed by registered mail to plaintiff, and a postoffice receipt therefor, signed by plaintiff, is shown by the testimony. Inclosed in the envelope. containing the deed was the following letter and statement: About Dec. 5th, '06, I wrote you concerning taxbills against lots 1 and 2, block 3, Second Addition property. These were taxbills issued for asphalting Cherokee street. On Dec. 24, '06, you wrote me stating that you would not pay more than sixty per cent of the face value of these bills, in answer to which letter I wrote you on the 16th of March, 1907, asking you if this was your ultimatum in the matter and asking you to kindly write me by return mail, if possible, stating your wishes in the matter as the bills were long past due. As is customary and essential in such transactions, I also asked you to mail me the insurance policies on your two places so that I would be protected in my loan in case the buildings should burn. I have not as yet had the courtesy of a reply of any nature from you. I have therefore decided to place lot 1, block 3, in a loan and herewith send you warranty deed for this lot, which deed is second and subject to a deed of trust dated March 19, '07, securing note amounting to $1623 running three years with interest at seven per cent per annum, payable semi-annually, the first installment of which interest comes due Sept. 19, '07. I herewith inclose you a statement showing the items of which this $1623 is made up. Unless I hear from you soon in regard to the matter I will take it for granted that you have no insurance policies on this building so that I will have to take out insurance policy myself for $700 and file with this first mortgage as per the terms of same Yours respectfully, E. M. LINDSAY, Thompson v. Lindsay. The statement referred to in the letter was this: $1045.00 $1207.00 March 21, '07. Prin. due on Contract to Mar. 19, '07. 131.91 Taxbill Lot 1, Block 3. 10% Int. due on Taxbill to May 11, '06. 14.30 6% Int. due on Taxbill from May 1, '06, to Mch. 19, '07. 1.75 Recording Deed of Trust. $1623.12" Speaking of the last letter, there was evidence tending to show that plaintiff on March 21st received information there was a registered letter at the postoffice. The postal officials refused to deliver it as ordinary mail, but sent plaintiff, through his messenger, a receipt to sign. This receipt he signed when traveling bag in hand he was about to leave for Colorado. on a waiting train. The signed receipt was taken to the postoffice by a clerk of plaintiff's bank and the letter was handed to the clerk, who brought it and laid it on plaintiff's desk, he having gone to his train. When he returned at a certain time after the foreclosure he saw the letter and statement for the first time then open with the letter of March 16th. Plaintiff had left instructions to forward his mail. This mail was not forwarded to him. He left behind no authority with any one to deal with any phase of the matter in his business with Lindsay except to pay the monthly installments, as heretofore stated. Who opened these letters or why they (or their contents) were not forwarded to him is not disclosed. These letters were eventually found in a drawer or other receptacle of plaintiff's desk, but who put them away there is not disclosed. Neither is it clear that plaintiff was absent from St. Joseph during the whole of the summer of Thompson v. Lindsay. After the 21st of March, 1907, Lindsay quit calling for and receiving the monthly installments due on the contract at plaintiff's bank, but plaintiff did not know of that fact until after the foreclosure. It sufficiently appears also that the monthly rental value of the property was thirty dollars per month. When the foreclosure sale was advertised, Lindsay cut out the advertisement from the newspaper and mailed it to plaintiff, but there is testimony that he addressed the envelope improperly and that plaintiff did not get it and knew nothing of the foreclosure until after the event. Other evidence may be summed up in this way: there is some to the effect that plaintiff caused to be furnished a policy of insurance in obedience to the request of the March 21st letter, and testimony to the contrary. There is evidence of an attempt over the telephone, by personal interview and by correspondence, to compromise the matter after the foreclosure and allow plaintiff to redeem-we deem it unimportant. At no time until after the decree, did plaintiff tender the amount he claimed to be due Lindsay. He offered to pay, but made no tender as that term is defined in the law. Defendants put in evidence showing that after Lindsay's mother got her trustee's deed he caused a suit to be brought in her name against plaintiff's tenant in straight ejectment and that such suit, on default, ripened into a judgment followed by the execution of a writ of restitution. The proof sustained the answer on that score and plaintiff, at some uncertain time before the end of that suit, had notice of it. Any other necessary facts anent proof, pleadings or decree will appear in the opinion. The brief of defendants' industrious counsel takes a wide range. We think it better to formulate questions here in our own way. Thompson v. Lindsay. (a) Defendants objected below to the introduction of any testimony. This, on the theory the bill did not state facts sufficient to constitute a cause of action. The objection was overruled and that ruling is now assigned for error. We hold the petition good and the ruling well enough. A challenge of that sort comes late and the bill is entitled to every reasonable intendment and implication in its favor. [East St. Louis Ice & Cold Storage Co. v. Kuhlmann, 238 Mo. 685, 142 S. W. 253.] The argument in support of the assignment, as we grasp the run of it, is that plaintiff stated himself out of court when he pleaded the clause in the contract requiring the purchaser to pay the Cherokee street taxbill. But that clause, as presently seen, was one of several relating to liens and taxes. A proper construction of a contract arises on the whole subject-matter -parties, their relations to each other, the object to be subserved by the contract, and the language all considered. From that view-point neither do the pleaded terms of the contract nor the allegations of the bill mean that plaintiff was to pay this whole taxbill, whether or no and at all events, as contended. The matter is further dealt with in the next paragraph. We disallow the point to defendants. (b) It is argued that (under the contract) Lindsay had the right to buy this taxbill, and when bought had the right (still under the contract) to collect its face with interest at ten per cent from date from the lot purchasers; and to that end (still under the contract) he had the further right and option to merge the amount of the taxbill, so computed, into the balance due on the contract, borrow enough on the lot to pay himself such aggregated sum and then make a warranty deed with a provision therein binding the prior lot purchaser, without any voice in the matter, to assume and pay the whole amount. But if Lindsay had the right to buy that taxbill such right did not Thompson v. Lindsay. arise from the contract itself. It is silent on that point. It arose, if at all, from general principles of law giving to an individual the right to lawfully buy a vendible thing. A discussion of that theory would be academic; for under this record Lindsay did not buy the taxbill-he paid the taxbill. To buy is not to pay. If he had actually bought that bill then we would confront the situation whether the purchase contract for the lot contemplated such purchase of the bill and its enforcement in full, whether void or not, as against the purchaser of the lot by means of the option to borrow money and force the payment of the borrowed money by an assumption in the warranty deed to follow the loan under that option. Since we rule he did not buy the bill it is not necessary for us to determine the question of what rights he might have under such hypothetical purchase. We may say, in passing, that when the contract of purchase is read from end to end and corner to corner and its cold letter is illuminated and made alive by existing facts and circumstances and the relations. of the parties, it would be a harsh and unnatural construction of the contract that would permit Lindsay, while he was defending against an over-due taxbill as void, to sell the lot, thereafter carry on the defense of invalidity and then (presto! change!) without notice to the lot purchaser of his change in attitude, or the existence of any overpowering necessity, turn about, abandon the defense, and buy the bill he claimed was invalid at the time he sold the lot and fasten it at his own volition with its accumulated burdens upon the lot as a valid lien. That would be to make of the purchase contract a trap to catch the unwary purchaser by the heel. Justice to Mr. Lindsay in this case requires us to save him from the imputation of making such a contract, for the contract does not read that way. |