American Copying Co. v. Muleski

• Decision Date: 01 November 1909
• Citation: 122 S.W. 384,138 Mo.App. 419
• Parties: AMERICAN COPYING CO., Respondent, v. FELIX MULESKI, Appellant
• Court: Kansas Court of Appeals

122 S.W. 384

138 Mo.App. 419

AMERICAN COPYING CO., Respondent, v. FELIX MULESKI, Appellant

Court of Appeals of Missouri, Kansas City

November 1, 1909

Appeal from Buchanan Circuit Court.--Hon. C. A. Mosman, Judge.

Judgment affirmed.

Mytton & Parkinson for appellant.

The court erred and abused its discretion, if it had any, in striking from the files the appellant's amended answer and in refusing to permit him to file amended answer tendered in his "motion for leave to file amended answer," which set forth good, lawful and legal defenses to the cause of action alleged in plaintiff's petition. The court had ample power after reference, if there could be a reference without an order of record, to permit amendments of pleadings. R. S. 1899, secs. 657, 661, 663; Insurance Co v. Potter, 4 Mo.App. 595; Cayce v. Ragsdale, 17 Mo. 32; Martin v. Martin's Administrator, 27 Mo 227; Dallam v. Bowman, 16 Mo. 225; Water Co. v Dreyfus, 104 Mo.App. 437; Collins v. Glass, 46 Mo.App. 297; Howard v. Shirley, 75 Mo.App. 150. The plaintiff failed to prove any damage resulting from the breach by appellant of the terms of the "proposal," even if it had ripened into a contract by failure of appellant to deny his real signature under oath. The referee made no finding of any damages sustained by respondent, and the court erred in not sustaining appellant's exceptions to report of referee, and in rendering judgment on said findings. Under the law and the evidence the plaintiff's cause of action was a lottery device, inhibited by state and national laws, and beyond them by public conscience, making it against public policy and therefore not enforcible. Under the law and the evidence the plaintiff's cause of action was illegal and no damages were proven, and the judgment upon the findings of the referee should have been for the appellant.

J. B. Shackleford and John A. Connett for respondent.

By his failure to deny execution of the instrument sued under oath, defendant admitted both the signing and delivery of the instrument. R. S. 1899, sec. 746; Hart v. Wire Co., 91 Mo. 422; B. & L. Assn. v. Obert, 169 Mo. 517; Wallman v. Loewen, 96 Mo.App. 305; Johnson v. Woodmen of the World, 119 Mo. 102. In order to make the defense that the contract sued on was in violation of the lottery statute and therefore void, it was necessary for defendant to plead the illegality of the contract as an affirmative defense. McDarmott v. Sedgwick, 140 Mo. 184; St. Louis, etc., Assn. v. Delano, 108 Mo. 217. These cases overrule the earlier case of Sprague v. Rooney, 104 Mo. 349. And we wish to note in this connection that our Supreme Court has shown a disposition to consider none too favorably the attempt of defendants to retain all the fruits and escape all the burdens of a contract involving the possible violation of a misdemeanor statute; see: Michael v. Bacon, 49 Mo. 476; Howell v. Stewart, 54 Mo. 401; Sprague v. Rooney, 82 Mo. 493. The allowance of amendment of pleadings rests in the discretion of the trial court and the appellate court will reverse only in case of palpable or gross abuse. Singer Manufacturing Co. v. Gibens, 35 Mo.App. 608; Chauvin v. Lowens, 23 Mo. 227; Ensworth v. Barton, 67 Mo. 623.

OPINION

ELLISON, J.

Plaintiff's action is for damages for breach of a written contract. The case was referred to a referee, whose findings for plaintiff were approved by the trial court, and judgment accordingly entered.

It appears that defendant, who is a retail butcher in St. Joseph, signed a written instrument whereby he agreed to purchase of plaintiff certain advertising stamps advertising defendant's business, which were to be given out by defendant to his customers, one for each ten cents' worth purchased, for which defendant was to pay plaintiff thirty cents per hundred stamps so obtained of plaintiff and given out by defendant. It was further agreed that plaintiff would consign to some merchant in St. Joseph "one Cleveland Special Automobile." The writing then proceeded as follows:

"For the compensation received by you from us for said stamps you are to print our name and business on your Automobile Stamp Directory for this town and appoint some person or firm in this town to give to each of our customers for each filled Automobile Stamp Directory containing one hundred of such purchase stamps a ticket, giving to the holder an undivided interest in said automobile upon the termination of this proposition, and the faithful compliance upon our part of its conditions.

"It is understood that you have the right to accept propositions from other merchants of this town, and that customers holding tickets from all such merchants who have complied with the terms of their agreements with you shall have equal interest with ours. That is, the automobile, upon the termination of this agreement and other similar agreements you may have with other merchants of this place, shall become the sole property of the holders of tickets obtained in the above described manner.

"It is further understood that upon each ticket will be printed a certain date, said date to be within one month of the termination of this agreement, upon which a meeting of the holders of all tickets issued shall be held, to agree upon what disposition shall be made of said automobile. At that meeting each ticket holder shall be entitled to one vote for each ticket held that was secured in the above described manner, the majority of such votes at such meeting to determine the disposition to be...