Balauri v. Anastas

• Decision Date: 09 June 1924
• Docket Number: No. 18336.,18336.
• Citation: 263 S.W. 458
• Parties: BALAURI v. ANASTAS et al.
• Court: Missouri Court of Appeals

263 S.W. 458

BALAURI v. ANASTAS et al.

No. 18336.

St. Louis Court of Appeals. Missouri.

June 9, 1924.

Rehearing Denied June 24, 1924.

Appeal from St. Lot is Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by S. D. Balauri against Harry Anastas and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Conway Elder, of St. Louis, for appellants.

Roland Van Hoeffen, of St. Louis, for respondent.

DAUES, J.

This is an action In two counts, one for money loaned and the other for money had and received. There was a verdict and judgment in favor of plaintiff on both counts in the amounts sued for and also in favor of plaintiff on both the first and second counts of defendants' counterclaim. Defendants have appealed.

The first count of the petition alleges that plaintiff loaned defendants the sum of $200 on January 27, 1920, and that demand for payment of same was made and refused. Count 2 is based upon the alleged payment by plaintiff to defendants on April 19, 1920, of'$600, which sum it is alleged was to be the purchase price for 1,200 shares of stock in the Arco Oil Company, and it is alleged that the demand for the delivery of the stock was made and refused on October 20, 1920.

The answer is a general denial of both counts, with the allegation that defendants were solicited by plaintiff to buy 600 shares of the Arco Oil Trust for $600, and that the stock was purchased and delivered to plaintiff. By way of a counterclaim in two counts, defendants set up that plaintiff owed board to defendants in the sum of $880, payment of which was demanded of plaintiff and refused by him; the second count of the counterclaim is that plaintiff roomed with defendants for a period of time and thereby became indebted to defendants in the sum of $250, which sum, it is alleged, is still due defendants. The total sum prayed for in the counterclaim is $1,130.

The reply admits that plaintiff roomed and boarded with defendants but alleges that plaintiff was employed by defendants as a bartender, for which services he was paid partly in cash and partly in board and lodging, but that the cash payments and board and lodging did not entirely pay him for his work. The reply also avers that defendants advanced plaintiff certain sums of money, but alleges that on March 1, 1919, an account was stated between plaintiff and defendants with reference to said matters and things, and upon such statement it was found and agreed that there was due from plaintiff to defendants a balance of $500, which sum plaintiff then paid defendants.

To this reply, defendants filed a general denial.

Plaintiff's evidence tends to show, under the first count, that plaintiff loaned defendants $200 on January 27, 1920, and that defendants agreed to pay this back whenever demand was made upon them; that plaintiff demanded payment before suit was brought; and that defendants failed and refused to return said sum, or any part thereof. It is plaintiff's testimony that defendants did not deny the debt, but gave as their excuse for not paying back the money, that they were in an impecunious condition. The following is contained in plaintiff's direct examination:

"Q. Thereafter did you ever talk to any of the Anastas brothers about this loan? A. Yes, sir.

"Q. To who? A. I demanded it from Naum Anastas, and he told me they cannot afford at the present time to pay me, and you will have to wait, and I said all right.

"Q. Did you ever ask Harry for it? A. I called him up at Sixth street, and I said can you give me some money on that $200? I want it bad, and I called him up and asked him if he could not give me that money as I am behind with my rent, and he said, `You understand our case at the present time; we cannot pay you.'

"Q. That was Harry Anastas? A. Yes, sir.

"Q. And you know they are all in partnership? A. Yes, sir.

"Q. Did you ever talk to Theodore Anastas about it? A. 1921 right here in front of the Times Building. And he told me he just came out from a real estate man some place and they wanted to mortgage their laundry for $20,000, and the minute they had that he said he will pay me in full for the shares and the $200."

Defendants' testimony, touching the first count, is to the effect that they received $200 from plaintiff at the time mentioned, but that same was liquidated as part payment of room rent and board which defendants state plaintiff owed them. It is the direct and positive testimony of plaintiff that the money was given defendants as a loan, and it is defendants' positive testimony that Plaintiff paid defendants this money on a debt he owed them for board and lodging.

As we read the record, there is no dispute but that defendants received the money from plaintiff, and the defendants did not claim that they repaid plaintiff in money, but the whole controversy seems to be as to whether the money was loaned the defendants, or whether it was in payment for board and lodging due defendants from plaintiff.

With reference to the second count, plaintiff's evidence tends to show that he gave the defendants $300, represented by a check. This check was given defendants on April 9, 1920. It is the testimony of plaintiff that defendants agreed to deliver to plaintiff 1,200 shares of Arco Oil Company stock, and that this stock was to be delivered within ten days from said date. Plaintiff and witnesses testified that plaintiff demanded this stock from defendants several times, and that defendants refused to deliver same to him, and that thereupon plaintiff went to defendants and asked for the return of his money.

The defendants' evidence under this count Is to the effect that they received the $600 from plaintiff on April 19, 1920, the date upon which plaintiff says the stock was to be delivered to him. It is the evidence of the defendants, and corroborated by other witnesses, that this stock was actually delivered to plaintiff, but that plaintiff handed the stock back to one of the defendants for safekeeping.

With reference to the question as to whether plaintiff worked for defendants as a bartender, it is the testimony of plaintiff that he was so engaged and for which services he was to be paid certain wages, part of which was to be set off by board and lodging. Defendants produced several witnesses who testified that they were in and out of defendants' saloon daily at the time plaintiff claims he was acting as bartender, and that they did not see plaintiff performing any services for defendants. However strong the defendants' evidence tends to contradict plaintiff's case, the jury resolved this conflict in favor of plaintiff, and there being substantial evidence to support the verdict same cannot be distrubed here. Indeed, counsel for appellant does not stand upon a demurrer to the evidence.

The question presented here is whether certain instructions given by the court worked harm against the defendants, and whether for that reason the judgment should be reversed and the cause remanded for a new trial.

It is first insisted that the court erred in giving plaintiff's instruction No. 1, for the reason that same omits the essential element that the jury be required to find that defendants failed to repay the $260 mentioned in the instruction. It is said that the instruction assumes that the said amount was not repaid. This instruction is as follows:

"The court instructs the jury that if you find and believe from the evidence in this case that the plaintiff loaned the defendants the sum of two hundred dollars on or about the 27th day of January, 1920, that at the time plaintiff loaned defendants said two hundred dollars, if you do so find that plaintiff did so loan defendants said sum, the defendants agreed to repay said sum on demand, and if you further find and believe that plaintiff demanded said sum of defendants on the 5th day of October, 1920, then you will find for plaintiff and against the defendants on plaintiff's cause of action in the sum of two hundred dollars and interest thereon at the rate of six per cent, per annum from the 5th day of October, 1920, until date."

Of course, this instruction does fail to require the jury to find that defendants failed to repay the amount claimed under count 1 of the petition. It is difficult to understand how this instruction passed without this element. It is the lack of proper consideration of instructions that brings so many cases here on appeal and visits delay upon litigants. But our province now is to determine whether the giving of this instruction in this form constitutes reversible error. In other words, whether the losing party has suffered a substantial...