Crocker v. Maccartney

• Decision Date: 17 February 1930
• Docket Number: No. 4612.,4612.
• Citation: 24 S.W.2d 649
• Parties: CROCKER v. MacCARTNEY.
• Court: Missouri Court of Appeals

24 S.W.2d 649

CROCKER v. MacCARTNEY.

No. 4612.

Springfield Court of Appeals. Missouri.

February 17, 1930.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

"Not to be officially published."

Action by George W. Crocker against R. A. MacCartney. Judgment was entered for plaintiff, and from an order sustaining defendant's motion for a new trial, plaintiff appeals. Affirmed.

A. G. Young, of Webb City, for appellant.

Thos. J. Roney, of Webb City, for respondent.

BAILEY, J.

This is an appeal from an order sustaining defendant's motion for new trial. The suit was on a negotiable promissory note duly executed by defendant to the Bell Motor Company, a corporation, and assigned by it to plaintiff. Upon trial to a jury the trial court directed a verdict for plaintiff in the sum of $315 with interest at 8 per cent. from the 17th day of September, 1927. Thereupon a verdict and judgment was rendered in the sum of $341.95. A motion for a new trial was filed setting up some thirteen grounds, among them being alleged errors in refusing instructions, in the admission of evidence, and in that the verdict was against the weight of the evidence. The trial court sustained the motion, but failed to indicate any ground therefore as the statute requires. We may sustain the motion, however, if it appears that, for any reason assigned in the motion for new trial, it ought to have been sustained. Harris v. McQuay (Mo. App.) 242 S. W. 1011.

In considering such cases, on appeal, we should indulge in every reasonable inference favorable to right action on the part of the trial court in sustaining the motion. It is also true that the trial court has wide discretion in ruling upon a motion for new trial and appellate courts are reluctant to interfere in such matters, particularly when the motion for new trial has been sustained. Such discretion, however, is not to be arbitrarily exercised, but is a judicial discretion. Skirvin v. McKamey (Mo. App.) 237 S. W. 858; Reissman v. Wells (Mo. App.) 258 S. W. 43, 44.

In the present case, therefore, involving as it does the question of the weight of the evidence, the action of the trial court on the motion for new trial should be sustained unless, under the pleadings and evidence, no verdict for defendant could ever be allowed to stand. Haven v. Railway Co., 155 Mo. 216, 55 S. W. 1035. In the light of such first principles this case will be considered.

The answer in this action pleaded payment of the note. The evidence shows that the Bell Motor Company, of Joplin, Mo., was, for a number of years prior to the events herein related, engaged in the business of selling Studebaker automobiles. On or about September 17, 1927, defendant purchased a Studebaker automobile from the Bell Motor Company, and as part of the consideration executed to it his note for $540, payable in installments of $45 per month, drawing 8 per cent interest. The same instrument contained a chattel mortgage on this Studebaker car, securing the note. Both note and mortgage were duly executed and delivered by defendant. On the back of the note the following indorsement was thereafter made, to wit: "Protest waived and payment guaranteed. Bell Motor Co., By W. J. Bell, Pr." This note was then sold before maturity and delivered to plaintiff, George W. Crocker. The Bell Motor Company was adjudged a bankrupt in May, 1928. Prior to the date of the note in suit defendant had purchased another automobile from the Bell Motor Company, giving his installment note therefor, which note was sold to one Moore. It seems that when a purchaser under such circumstances was unable to make his payments when due, the Bell Motor Company would sometimes refinance the car for such purchaser, requiring him to execute a new mortgage and note, in which the payments would be smaller. The money procured from such latter mortgage was then used to liquidate the first mortgage, leaving the second mortgage a valid first lien on any such car. This method of refinancing was attempted in the present case as to the note sold Moore. Following such procedure, a second note and mortgage was duly executed by defendant, and this note was then sold to the I. A. C. Corporation for the sum of $781.80. The money procured from the I. A. C. came into the hands of the Bell Motor Company or its president, W. J. Bell. It was at this point the innocent began to suffer. The money was not used to liquidate the first mortgage note held by Moore. The evidence fails to indicate just what was done with the money. Upon a discovery of these facts a controversy arose between Bell, Moore, and defendant. This resulted in an agreement that Moore should cancel the first note and that defendant should be credited with that amount. In addition to that credit, a balance of $281.46 derived from this transaction was applied and credited, at defendant's request, on the books of the Bell Motor Company against the note in suit then in plaintiff's possession, leaving a balance of $33.54 yet due. No money actually changed hands at that time. The funds derived from the refinancing with the I. A. C. Corporation had been paid out before the time of this settlement. Plaintiff knew nothing about this credit on defendant's books against his note then in his possession, until the next day, when defendant, who had just learned plaintiff was the owner of the note, phoned him and offered to pay the balance due of $33.54. They had a meeting. Defendant testified that he showed plaintiff the credit, and that he said, "he felt that everything was all right." He further testified,

"I wanted to get my note. I had the check ready for $33.54 and was attempting to pay it. Mr. Crocker was in the frame of mind for doing it and Mr. Bell wouldn't do it.

"Mr. Young: I object to that.

"The Court: Just give the conversation.

"He suggested that Mr. Bell let it apply on the accumulated balance and Mr. Bell refused. That was after I had received the credit of $281.46. I had received that credit the day before. I showed Mr. Crocker this receipt the first thing in the morning. I was offering to pay the $33.54 to Mr. Bell and Mr. Bell wouldn't receive it. Mr. Crocker made no objection about the check of $281.46. He and I talked probably two hours. It might not have been that long; an hour and a half probably."

The receipt referred to was offered in evidence, but the court refused the offer. This receipt is as follows:

                                   "Exhibit 4
                                    "Joplin, Mo., 4-16-28
                "M _________
                    "__________
                            "In Account with
                            Bell Motor Company
                         "Studebaker Distributors
                                "Joplin, Mo
                "418 Wall Street                Phone 2402
                

"Received of R. A. MacCartney Two Hundred Eighty-one and 46/100 to apply on note, balance of $315 on President Sedan 2102689.

                                             "Bell Motor Co
                                                  "J. W. Lytle.
                "Bal. $33.54."
                

The evidence further shows that plaintiff had invested large sums of money in purchasing automobile paper from the Bell Motor Company. In regard to his method of doing business with the Bell Motor Company, plaintiff testified as follows:

"I had several notes; several hundred dollars sometimes. The Bell Motor Company collected these notes that I bought and had delivered to me. The Bell Motor Company endorsed the notes and paid me the payments as they were brought in to them. That was the...