Associates Discount Corp. of Iowa v. Fitzwater

• Decision Date: 02 December 1974
• Docket Number: Nos. KCD,s. KCD
• Citation: 518 S.W.2d 474
• Parties: 16 UCC Rep.Serv. 837 ASSOCIATES DISCOUNT CORPORATION OF IOWA, Appellant-Respondent, v. Bert FITZWATER and W. E. Keith, d/b/a Keith Implement Company, Appellants-Respondents. 26163, KCD 26156.
• Court: Missouri Court of Appeals

Page 474

518 S.W.2d 474

16 UCC Rep.Serv. 837

ASSOCIATES DISCOUNT CORPORATION OF IOWA, Appellant-Respondent, v. Bert FITZWATER and W. E. Keith, d/b/a Keith Implement Company, Appellants-Respondents.

Nos. KCD 26163, KCD 26156.

Missouri Court of Appeals, Kansas City District.

Dec. 2, 1974.

Motion for Rehearing and/or Transfer Denied Jan. 28, 1975.

L. E. Atherton, Milan, for appellant-respondent Associates.

P. M. Marr, Milan, Eugene E. Andereck, Terry M. Evans, Pickett, Andereck, Hauck & Sharp, Trenton, for appellants-respondents Fitzwater.

Before DIXON, C.J., and SHANGLER and WASSERSTROM, JJ.

DIXON, Chief Judge.

This case involves cross appeals in a suit on a note tried to a jury. The appeals have been consolidated. Plaintiff is Associates Discount Corporation of Iowa; defendants are Bert Fitzwater and W. E. Keith, d/b/a Keith Implement Company. Keith defaulted, and the jury returned a verdict in favor of the defendant Fitzwater. The trial court sustained Associates' motion for a new trial on the sole ground of error in the giving of Fitzwater's instruction on the affirmative defense of a lack or failure of consideration. Fitzwater appeals that ruling, and Associates appeals from the action of the trial court in denying summary judgment, judgment on the pleadings, motion for a directed verdict and the refusal of an instruction.

The facts so far as relevant to the appeals may be summarized thusly. Defendant Fitzwater who had previously been employed by Keith Implement Company as a used car salesman met with Keith and Lytle, the agent of plaintiff Associates, May 27, 1966 on the premises of Keith Implement. There is no dispute Fitzwater agreed to purchase a 1966 John Deere tractor. Lytle drew the papers which the parties agree consist of a note and chattel mortgage in one document. The note portion recites a down payment in cash of $2,723.56, but Fitzwater denies any such payment was made. There was no testimony contradictory to that assertion. The tractor was on the premises, but was equipped with a loader which was not a part of the purchase; the loader was to be removed and the tractor delivered. The tractor was never delivered, and Fitzwater did not make any payment. Associates received the initial seasonal payment, but could not identify the payors. The record of the payment shows it was made at three separate times by two bank drafts and a personal check. There is some indication Keith made this payment. Fitzwater, shortly after the deal was made, received a receipt for delivery of the tractor which he returned with a notation he had never received the tractor. Fitzwater testified Keith told him the tractor had been sold to someone else, but Fitzwater was never able to determine, nor does the entire record disclose who eventually received possession of the tractor. The note and security instrument recite that delivery of the tractor had been made to Fitzwater. The assignment of the paper to Associates was accomplished immediately upon Fitzwater signing, in the presence of Lytle, Associates' agent, and prior to delivery. So far as affirmatively appears, Keith never had physical possession of the note, except to endorse it to plaintiff. The payment to Keith for the assignment of the note was in two checks, one payable to Associates for credit on Keith's 'floor plan' and one to Keith.

Turning first to the appeal of the plaintiff Associates, the defendant Fitzwater has briefed and argued, under two points, defects in briefing by Associates. Fitzwater argues that Associates' brief fails to comply with Rule 84.04(d), V.A.M.R., and that the purported points raised preserve nothing for review. There is no doubt that Fitzwater's claim as to noncompliance the points, save the error on the denial of with Rule 84.04(d) is correct as to all of the motion for summary judgment, and that point is not properly preserved for review.

The points in Associates' brief dealing with the denial of the motions for directed verdict, for judgment on the pleadings, and the claim of error in the giving of the instruction are blatantly violative of the letter and spirit of Rule 84.04(d). They are abstract statements which require this court to become Associates' counsel and search the record to determine the relationship of the abstract statement to the action of the trial court. Troyer v. Click, 457 S.W.2d 221, 224 (Mo.App.1970). Direction to counsel on the requirements of Rule 84.04(d) has not been lacking. Grundmann v. Knezevich, 449 S.W.2d 874 (Mo.App.1970); Crimi v. Crimi, 479 S.W.2d 195 (Mo.App.1972); State ex rel. State Highway Commission v. Heim, 483 S.W.2d 410 (Mo.App.1972); Johnson v. Manwarren, 474 S.W.2d 342 (Mo.App.1971). Dictating the necessity for strict application of the rule is the manifest unfairness to litigants who comply with the rule having their causes delayed by time-consuming efforts in reviewing points not properly briefed. Kerr v. Ehinger, Inc., 515 S.W.2d 763 (handed down November 4, 1974).

On the issue of the denial of the motion for summary judgment, the transcript does not contain the motion, and it is thus impossible to tell if the requirements of Rule 74.04 were met. A notice that such a motion would be taken up is shown. That notice was filed June 28 for a hearing July 7, nine days later. Rule 74.04(c) provides the motion shall be served 'at least' ten days prior to hearing. Thus, even if the notice were construed as the motion itself, it fails to comply with the requirement of such service ten days prior to hearing. The plaintiff-appellant has the responsibility for insuring that the transcript as filed contains the necessary record to permit review.

Plaintiff Associates, not having properly raised or preserved the points of its appeal, can receive no relief on that appeal.

On the issue raised by the defendant Fitzwater that the trial court erred in sustaining plaintiff's motion for a new trial, the issue briefed in this court is very narrow. The...