Arthur R. Lindburg v. Quinn

• Decision Date: 03 January 1939
• Docket Number: No. 24490.,24490.
• Citation: 123 S.W.2d 215
• Parties: ARTHUR R. LINDBURG, Inc., v. QUINN.
• Court: Missouri Court of Appeals

123 S.W.2d 215

ARTHUR R. LINDBURG, Inc., v. QUINN.

No. 24490.

St. Louis Court of Appeals. Missouri.

January 3, 1939.

Appeal from St. Louis Circuit Court; John W. Joynt, Judge.

"Not to be published in State Reports."

Action by Arthur R. Lindburg, Inc., against John X. Quinn, on a note secured by a chattel mortgage, commenced in a justice of the peace court and appealed to the circuit court. From a judgment for the defendant, the plaintiff appeals.

Reversed and remanded.

H. M. Stolar and Murray Steinberg, both of St. Louis, for appellant.

Walter L. Brady and Charles Straub, both of St. Louis, for respondent.

McCULLEN, Judge.

In this suit, which was begun by appellant, as plaintiff, in a justice of the peace court against respondent, as defendant, plaintiff sought to recover from defendant $455.40, alleged to be due plaintiff on a promissory note and chattel mortgage executed by defendant. From a judgment in favor of defendant in the justice of the peace court plaintiff appealed to the Circuit Court of the City of St. Louis, Missouri, where the cause was tried before the court, a jury having been waived, resulting in a judgment in favor of defendant. After an unavailing motion for a new trial, plaintiff has brought the case to this court by appeal.

Plaintiff's amended petition, upon which the case was tried, alleged that, on October 23, 1933, defendant purchased a Studebaker automobile from plaintiff at a price of $1,538.50, including a pay-off of a mortgage on defendant's used automobile; that defendant was given credit for the used automobile in the sum of $400; that defendant executed a note and chattel mortgage to plaintiff to secure the balance due in the sum of $1,138.50. The note and chattel mortgage were attached to plaintiff's petition as plaintiff's Exhibit A. Plaintiff further alleged that defendant made payments until the amount he owed plaintiff was reduced to $846, after which defendant refused to make further payments, although demand therefor was made by plaintiff; that thereafter plaintiff, in accordance with the terms of the chattel mortgage, repossessed the automobile and sold it at public sale to the highest bidder for cash for $450, which amount was credited to the account of defendant, leaving a balance due of $396.

The amended petition of plaintiff further alleged that, by the terms of the chattel mortgage, defendant agreed to pay an additional amount of 15% of any deficiency remaining due plaintiff, amounting to $59.40 as attorney's fees, with interest and costs of the action. Plaintiff prayed judgment for a total sum of $455.40.

Defendant did not file any answer in the justice of the peace court or in the circuit court.

Julius H. Lindner, secretary and treasurer of the plaintiff company, testified that, when defendant failed to make his payments, the automobile was repossessed by plaintiff and sold at public sale for $450; that it was in poor condition when repossessed; and that certain repairs had to be made upon it.

Defendant testified in his own behalf and admitted that the balance due plaintiff at the time the automobile was repossessed was $846. Defendant did not deny execution of the note and chattel mortgage, nor did he deny that there was a default under the terms of the chattel mortgage at the time the automobile was repossessed. His testimony was to the effect that, after plaintiff had repossessed the automobile, he (defendant) desired to redeem it but refused to take it back because a radio and a heater, which he had installed in it, were missing; that the automobile was in good condition at the time of the repossession, having been driven only six thousand miles; that, at the time of the resale, the automobile had a value of $1,000.

In rebuttal, plaintiff called as a witness L. F. Kissel, service manager of the plaintiff company. He testified that the automobile was in bad condition at the time it was repossessed by plaintiff; and gave a detailed description of the repairs which were made by plaintiff after the repossession of the automobile took place. He testified further in detail concerning the public sale of the automobile after it had been repossessed by plaintiff; that he had bid on the automobile at said sale; that there were other bidders at the sale; that the automobile at the time of said resale was worth about four hundred to four hundred and seventy-five dollars at either a public or private sale; that $475 was a fair price for it; and that he bought it for Arthur R. Lindburg Co. of San Francisco, California.

At the close of all the evidence, defendant requested the court to give a peremptory instruction in the nature of a demurrer to the evidence, which request was refused by the court. Thereafter, the court entered a judgment for defendant.

Plaintiff contends that the court erred in admitting, over plaintiff's objection and exception, the testimony of defendant with respect to the loss of his radio and heater and the value thereof.

Defendant was not represented at the argument in this court and has filed no brief herein. We must, therefore, take the case on the record without the aid of any brief or argument on behalf of defendant.

The testimony of defendant was to the effect that, when he inspected the car after it was repossessed by plaintiff and was in plaintiff's premises, he discovered that the heater and the radio were missing, and that they were valued at a total of $90. When defendant first testified that his radio and heater were gone, the objection to such testimony did not come until after the witness had answered, but plaintiff asked that such testimony be stricken from the record on the ground that it did not go to prove or disprove any of the allegations in this case. A number of times thereafter defendant testified concerning the same matter, after which objections were made which were overruled by the court. No motion to strike out was made by plaintiff in these later instances, but we think it was sufficient that plaintiff did move to strike out such testimony when it first made its appearance, hence it is our duty to determine whether or not the court erred in permitting such testimony to be admitted, after being fully informed of the grounds of the objection thereto and a motion to strike out having been made and overruled in the first instance.

It will be recalled that defendant filed no answer in the justice of the peace court, and filed no answer in the circuit court.

Under the power of sale given to it by the terms of the combination note and chattel mortgage, introduced in evidence by plaintiff as Exhibit A, plaintiff was authorized to sell the mortgaged automobile and to hold defendant for any deficiency between the amount it received from the sale and the balance due on the note. Defendant's claim for the loss of the radio and heater constituted a cause of action against plaintiff which he could enforce by bringing a separate suit against plaintiff, or by filing a counterclaim in the case at bar. Defendant did not follow either course.

Section 2185 R.S.Mo.1929, Mo.St.Ann. § 2185, p. 2383, provides that no formal pleadings upon the part of either plaintiff or defendant shall be required in a justice court; but it also provides that "The defendant shall, before trial is commenced, file the instrument, account or statement of his set-off or counterclaim relied upon."

Inasmuch as defendant did not file any counterclaim as required by the statute, it was error for the court to admit the testimony complained of, since such matters could not be proved under the general issue. It is the established law in this state that matters which constitute a counterclaim to an action begun in a justice of the peace court must be set up as a defense, and a statement thereof must be filed before the trial is commenced, or the defendant cannot avail himself of such defense either in the justice court or in the circuit court. Shepherd v. Padgitt, 91 Mo.App. 473; Hunter v. Helsley, 98 Mo.App. 616, 73 S.W. 719; Beekman Lbr. Co. v. Glendale Lbr. Co., 158 Mo.App. 309, 138 S.W. 90; Barr v. Lake, 147 Mo.App. 252, 126 S W. 755. See also Section 2359, R.S.Mo. 1929, Mo.St.Ann. § 2359, p. 2466, which provides that, in cases wherein summons has been personally served on the defendant, no set-off or counterclaim shall be pleaded in the appellate (circuit) court that was not pleaded before the justice.

Plaintiff further contends that the court erred in admitting testimony by defendant with respect to the value of the automobile at the time of the repossession thereof by plaintiff. The record shows that defendant admitted the execution of the combination note and chattel mortgage upon which plaintiff's suit is based; and also admitted the balance due thereon at the time the...