Brandhorst v. Carondelet Sav. and Loan Ass'n, 43560
| Decision Date | 01 December 1981 |
| Docket Number | No. 43560,43560 |
| Parties | 33 UCC Rep.Serv. 302 David BRANDHORST, Respondent, v. CARONDELET SAVINGS AND LOAN ASSOCIATION, Appellant. |
| Court | Missouri Court of Appeals |
Gene W. Elkin, St. Louis, for appellant.
Benson Cytron, House Springs, for respondent.
This is an action by Brandhorst for conversion of money. Brandhorst received a jury verdict for actual damages of $1,035.92 and for punitive damages of $2,500.00. Carondelet appeals on the ground that it was entitled to a directed verdict at the close of all the evidence. It does not question the sufficiency of the evidence as to punitive damages except insofar as it was entitled to directed verdict. We affirm.
The basal subject of inquiry is whether Brandhorst demonstrated a cause of action for conversion. In adjudging whether a submissible case was made, we comprehend all evidence and inferences therefrom in favor of Brandhorst. Fleischmann v. Mercantile Trust Co. Nat. Ass'n, 617 S.W.2d 73 (Mo.banc 1981).
On May 24, 1978, Brandhorst's mortgage loan, obtained from Carondelet was three months in arrears. Carondelet's house counsel sent a letter informing Brandhorst that the maturity date of the note was being accelerated and that all unpaid indebtedness was immediately due and payable. This missive, however, was returned to Carondelet by the post office on June 11 marked as unclaimed.
On June 5, Brandhorst, apparently unaware of the aforementioned letter, went to Carondelet's South County branch and attempted to make the mortgage payments by a check drawn on his personal business account, that of B & D Remodeling Contractors. The teller refused to accept the check and informed him that he would have to pay cash. Brandhorst then went to his own bank, cashed the check and returned to Carondelet to make the payment. He received a receipt for the cash containing his loan number. The teller took the money and made out American Express Money Orders payable to the order of Carondelet as a means of transferring the money from the branch to the main office.
With a letter dated June 6, over the signature of Carondelet's loan officer, the two money orders were mailed to Brandhorst. The letter stated that his loan was accelerated and the foreclosure would follow.
By letter dated June 19, Brandhorst's attorney returned the money orders, which were payable to the order of Carondelet, to Carondelet. The letter included the statement "I cannot imagine why the letter dated June 21, returned the money orders to Brandhorst's attorney and in the letter stated "(p)lease do not waste our time in returning these money orders again."
In the letter of Carondelet to Brandhorst's attorney, dated June 22, the loan officer stated "(t)hank you for not returning the money orders again." Brandhorst was able to obtain other financing and paid his debt to defendant, but did not receive credit for the $1,035.92. At no time did Carondelet offer Brandhorst anything but the money orders.
Carondelet claims that it was entitled to a directed verdict at the close of all the evidence, but there is no record that Carondelet ever moved for such a verdict at that time. The record does contain an oral motion for directed verdict made by Carondelet after Brandhorst had presented his evidence, but the trial court overruled the motion and Carondelet proceeded to present evidence. Absent such a motion for directed verdict, as required by Rule 72.01(a), Carondelet's postverdict motion for judgment n.o.v. is without basis and preserves nothing for appellate review. Christ v. Rice, 578 S.W.2d 319, 322 (Mo.App.1979). This point can only be reviewed as plain error. MAJ Inv. Corp. v. Wersching, 612 S.W.2d 364, 365 (Mo.App.1980). This review is made more difficult by the fact that neither party submitted Instruction Number Five, the verdict-directing instruction which, according to the transcript, does not conform to any of the Missouri Approved Instructions. We are not positive, therefore, that the case was submitted to the jury on a conversion theory. It seems, however, from the briefs, from the legal file and from the transcript of oral arguments before the...
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