![]() ![]() As provided in the Agreement, Powell has the right to offset against the balance of any time remaining unpaid hereunder and against said other Note, the amount of any liability established by judgment against the payee hereof or the payee of said other Note, for breach of any of their covenants, agreements, representations or warranties contained in the Agreement. This Note and another similar Note of even date herewith have been executed and delivered pursuant to a Stock Purchase Agreement dated Octo(the "Agreement"), among Charles Waidmann the payee and the other stockholder of Gerald Lumber Company. The pertinent terms of each note provide as follows: ![]() Pursuant to the agreement, Powell delivered installment promissory notes to Charles Waidmann in the sum of $126,900.00 (payable over 119 months at *909 $1287.10 per month) and to Herman Waidmann in the sum of $186,400.00 (payable over 119 months at $1890.59 per month). Thereafter an additional letter of credit for the remaining unpaid balance of the Notes or other security acceptable to the Sellers shall be supplied by Powell to secure the Note the failure of Powell to supply such additional letter of credit or other security shall be a default under the Notes. He Notes shall be secured (to the extent of 100% of the declining balance of each Note) by a letter of credit from Mercantile Trust Company, N.A. This agreement provided that Powell would deliver promissory notes, one to Charles Waidmann and one to Herman Waidmann, as consideration for the sale of the Waidmanns' stock in Gerald Lumber Company, a Missouri corporation. On Octothe Waidmanns and Powell entered into a stock purchase agreement. (Marian) and Marian's chief financial officer, Walter J. Powell Lumber Company (Powell), a subsidiary of Marian Industries, Inc. The Waidmanns, along with their attorney, Daryl Hartley, entered negotiations with W.H. In 1978 Charles and Herman Waidmann began to seek buyers for their lumber yard business, Gerald Lumber Company, in Gerald, Missouri. DRAWEE VS ACCOUNTEE TRIALIn addition, Waidmanns contends that the trial court erred in denying their post trial motion for prejudgment interest where such was capable of determination by a mere mathematical calculation.Ī rendition of the facts pertinent to the issues raised on appeal follows. On appeal, Mercantile alleges the trial court erred in: (1) overruling its motion for directed verdict and judgment notwithstanding the verdict where plaintiffs failed to comply with the terms of the letters of credit (2) admitting extrinsic evidence and submitting an instruction on the meaning of the term "payment" in the letters of credit where such term was clear and unambiguous (3) submitting an instruction on waiver and estoppel where Mercantile gave notice and reasons for its refusal to honor the Waidmanns' draws on the letters of credit within a reasonable time and where defects in the draw were incapable of being cured and (4) submitting verdict directing instructions unsupported by the evidence and not in accord with MAI. Louis in favor of plaintiffs, Charles Waidmann in the sum of $111,772.96 and Herman Waidmann in the sum of $164,180.17 after a remittitur. Louis, for appellant.ĭefendant Mercantile Trust Company National Association (Mercantile) appeals from a judgment of the Circuit Court of the City of St. Ebling, Gallop, Johnson & Neuman, Clayton, for respondents. *908 Guilfoil, Petzall & Shoemake, Thomas M. Motion for Rehearing and/or Transfer Denied June 10, 1986.Īpplication to Transfer Denied July 15, 1986. Missouri Court of Appeals, Eastern District, Division Three. MERCANTILE TRUST COMPANY NATIONAL ASSOCIATION, Appellant. Charles WAIDMANN and Herman Waidmann, Respondents, ![]()
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