
    JOSEPH A. FULLERTON et al., Respondents, v. MOSES A. SCHLOSS, Appellant.
    Kansas City Court of Appeals,
    December 7, 1903.
    1. CONTRACTS:Consideration: Release: Foreclosure: Taxes. To secure the payment of an immatured debt the creditor promised the débtor to release him from an agreed bonus, and plaintiff made another loan to pay the debt, when the creditor refused to accept payment without the bonus. Thereupon the debtor paid the bonus, the creditor agreeing to refund the same if he secured a new loan for his money, which he did. Held, there was sufficient consideration for the first agreement and the release of the first was sufficient consideration for the second; and this notwithstanding the deed of trust securing the new loan might have been foreclosed by reason of the non-payment of taxes.
    2. VERDICTS: Excessive: Instructions. The instruction in the case is approved, and the verdict held not to exceed the amount justified by the facts.
    
      Appeal from Buchanan Circuit Court. — Row. A. M. Woodson, Judge.
    Affirmed.
    
      Chas. C. Crow for appellant.
    (1) The instruction given on behalf and at the request of respondents was erroneous for the reason that said instruction did not advise the jury as alleged in respondents’ petition that it was necessary to find that the second alleged agreement was made in consideration of respondents waiving their right, if any, under the first alleged agreement. Fegan v. Duval S. & G. Co., 92 Mo, App. 236. (2) Clearly respondents could not recover in this case on account of the breach of the first contract, and, under all the authorities, they can not recover on account of a breach of the second contract, for the reason that the money was paid in strict accord with the terms of the written contract and therefore there was no consideration for the making of said alleged contract to refund. (3) And especially is this true where respondent had the right to foreclose and collect five per cent attorney’s fees in addition to all expense. Tucker v. Bartle, 85 Mo. 115; Willis v. Gammill, 67 Mo. 730; Brewing Co. v. Schoenlaub, 32 Mo. App. 357; Griffith v. Creighton, 63 Mo. App. 1; Price v. Cannon, 3 Mo. 453; Wetmore v. Crouch, 150 Mo. 671; Winter v. Cable Co., 73 Mo. App. 173; School Board v. Hull, 72 Mo. App. 403; Spratt v. Lawson, 75 S. W. 642.
    
      John George Parkinson for respondents.
    (1) If the least benefit or advantage be received by the promisee from the promisor or from a third person, or if the promisee sustained any the least injury or detriment, it will in either case constitute a sufficient consideration. Marks v. Bank, 8 Mo. 316; Lancaster v. Elliott, 55 Mo. App. 249; Columbia Inc. L. Co. v. Mfg. Co., 64 Mo. App. 115.
   ELLISON, J.

Since the verdict in this case was for plaintiff we will state the facts as the evidence in his behalf tends to show them: Plaintiff executed two notes to defendant, one for $2,500, and one for $300, secured by deed of trust on real estate owned by plaintiff. The latter note was due in one year and the former in five years. It was provided in the deed of trust that plaintiff might pay off said notes at any time before due if he would pay defendant a bonus of six months ’ interest at eight per cent, amounting to $112. That several years before the largest note became due defendant desired plaintiff to pay them off and asked him to secure a new loan for that purpose, and that if he would do so he (defendant) would release and forego all claim to the bonus provided for in the deed of trust. Plantiff in compliance with this request and promise to release and forego all claim to the bonus, did procure another loan; but when he came to pay defendant the latter demanded that he pay the bonus as originally agreed and provided in the deed of trust. This, respondent at first refused to do, but it was finally agreed between them that if plaintiff would pay the bonus thus demanded defendant would make an effort to reloan the principal sums then, being paid to him by plaintiff (or a like amount) and if he succeeded in doing so he would then pay back to plaintiff the bonus which plaintiff paid with the principal sum. Defendant did reloan the money but refused to pay back the $112 bonus, whereupon plaintiff brought this action and recovered judgment in the trial court.

It is urged by defendant that there was no consideration to support the agreement upon which the suit was brought. We think there was. The largest note was not due. Defendant proposed to plaintiff that if he would negotiate a new loan whereby he would be enabled to pay off tbe debt, be (defendant) would release bim of tbe bonus. It was a valuable service to defendant rendered by plaintiff when tbe latter negotiated a new loan for tbe purpose of paying bim a debt not yet due. Then, when defendant came to propose to plaintiff that tbe latter should pay tbe bonus wbicb be bad agreed to release, plaintiff said he would do so if defendant would pay bim back that amount if be could reloan tbe money. Defendant agreed to do it. It seems to us that tbe consideration is plain and ample. Tbe consideration for tbe second contract was tbe release of performance of tbe first contract.

It seems that at tbe time of tbe agreement that plaintiff should negotiate a new loan, there was some default in tbe payment of taxes wbicb, under tbe terms,' of tbe deed of trust, would have authorized defendant to foreclose, and tbe court so instructed tbe jury for defendant ; .stating therein that if therefore tbe payment made by plaintiff was voluntary be could not recover. But from tbe fact that tbe deed of trust could have been foreclosed for non-payment of taxes, it does not follow that it would have been. Plaintiff, at any time before that was accomplished, could have paid them and thus kept defendant from bis money until it was due. Instead of exercising such right, plaintiff accepted defendant’s proposition and negotiated a new loan.

There was only one instruction given for plaintiff. It clearly put tbe issue between tbe parties to tbe jury. It is not fairly subject to defendant’s criticism.

We do not regard tbe suggestion that tbe verdict was for $12 more than justified by tbe facts, as well founded. Tbe contract proven and wbicb we have seen was supported by a consideration was for a return of tbe entire bonus.

An examination of all points and suggestions made by defendant fails to satisfy us that there is any error in tbe record, and tbe judgment is therefore affirmed.

All concur.  