Cunningham v. Holzmark

• Decision Date: 05 January 1931
• Docket Number: No. 17058.,17058.
• Citation: 37 S.W.2d 956
• Parties: CUNNINGHAM v. HOLZMARK et al.
• Court: Missouri Court of Appeals

37 S.W.2d 956

CUNNINGHAM v. HOLZMARK et al.

No. 17058.

Kansas City Court of Appeals. Missouri.

January 5, 1931.

Rehearing Denied February 16, 1931.

Certiorari Denied April 7, 1931.

Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.

Suit by William Cunningham against Joseph F. Holzmark and another, doing business as the Holzmark Motor Company. Judgment for plaintiff, and defendants appeal.

Affirmed.

Friedberg & Rich, of Kansas City, for appellants.

Borders & Borders, of Kansas City, for respondent.

BLAND, J.

This is a suit for breach of contract to procure theft insurance on plaintiff's automobile. There was a verdict and judgment in favor of plaintiff in the sum of $800.00. Defendants have appealed.

The facts show that defendants are partners engaged in the selling of automobiles in Kansas City; that Mr. Fox, a salesman of defendants, came to plaintiff's home and solicited him to purchase an automobile from defendants; that on May 2nd, 1926, plaintiff, at his home, signed an order in blank for the purchase of such an automobile; that the order contained printed stipulations in reference to the sale of an automobile which stipulations were so drawn as to apply to the sale of any automobile, and not a specific car, the blank spaces being for the insertion of specific terms covering a sale of a car. The plaintiff had an Essex automobile which he desired to trade in on a new car, which it was proposed he purchase from the defendants, but he had not at the time he signed the order selected the particular type of car he was to purchase. The amount that he was to be allowed for his car was not agreed upon, nor were the terms of the contract.

On May 27th, 1926, plaintiff went to the place of business of defendants and there consummated with the defendant, Irwin Holzmark, the purchase of a new Overland automobile from them. At this time plaintiff selected the type of car he desired, agreed to the amount of the allowance which was then offered to him for his Essex car, and executed a note and chattel mortgage to secure the same on the new automobile. The purchase price of the new car was $1,207.00. Plaintiff received an allowance of $500.00 on his Essex car and with handling and insurance charges included there was a balance of $799.30 agreed as being due from plaintiff upon the new car. This was the amount of the note which plaintiff signed. The note was an installment note payable monthly, the first installment to become due on the 15th day of July, 1926, and the last on June 15th, 1927. In agreeing upon the terms of the sale plaintiff asked said Holzmark, "how about insurance." The latter replied, "You are fully protected on insurance for the life of your paper." Plaintiff testified that "was the understanding we had."

The note and chattel mortgage were made payable to defendants who indorsed the note "with recourse" and delivered it and the mortgage to the Automobile Finance Company, the purchaser thereof. As before stated, the first installment was to become due on July 15th, 1926, but on May 29th of that year, plaintiff received a notice from the Automobile Finance Company advising him that his first payment was to become due on the 27th day of June, 1926, and that plaintiff's note included payment for fire and theft insurance for one year. Upon receipt of this notice plaintiff called the defendant, Irwin Holzmark, and advised him that the notice was not in accordance with the agreement with reference to the date upon which the payments on the note were to become due, or, as to the duration of the fire and theft insurance. Said Holzmark told him "to pay no attention to the notice, to tear it up and pay my payments as agreed and he would take care of it." Plaintiff made payments on the note in accordance with his agreement with Irwin Holzmark and, on June 4th, 1927, the automobile was stolen and never recovered. At this time there was one payment, due June 15th, 1927, unmade upon the note. The payment of this last installment was never demanded by the finance company of defendant, nor by defendants of the plaintiff. After the theft of the automobile it was discovered that, instead of the car being insured against fire and theft for the life of the note, the insurance had been procured by the finance company and that it ran for only one year, expiring before the theft of the automobile.

The testimony of the defendants tends to show that the order was written up in their office before it was signed and upon the date it bore, to-wit, May 2nd, 1926; that plaintiff requested that the payments start on July 15th, which was agreed to, but nothing was said about how long the insurance was to be kept in force; that, in fact, nothing was said about the matter at all; that plaintiff did not call up Irwin Holzmark and tell him about the mistake made by finance company with reference to the payments and the insurance; that, in fact, plaintiff did not call said Holzmark at all; that the facts as to the amount of the insurance were obtained by defendants from the finance company; that that company received the money for and procured the insurance; that defendants had no insurance of any kind upon the car; that the insurance ran for one year; that defendants did not have at any time the insurance policy in their custody or access to it.

Defendants introduced the order in question which shows upon its face that at some time it was filled out in handwriting in such a way as to cover the agreement actually made when the car was purchased, except that there was nothing written in the order concerning the insurance. According to the defendants' testimony the order was filled out prior to the signing thereof by the plaintiff with the exception of the words appearing thereon, "80% F. T." The undisputed testimony shows that the note and chattel mortgage were executed on the date they bore, to-wit, May 27th, 1926.

It is insisted by the defendants that their instruction in the nature of a demurrer to the evidence should have been given for the reason that there is no consideration alleged in the petition for the contract pleaded. The petition alleges that on or about May 27th, 1926, plaintiff purchased from defendants an Overland automobile for the sum of $1,207.00, paying therefor part cash and part with his note in the sum of $799.30; that plaintiff had paid all of said note with the exception of the sum of $66.00; that defendants agreed "and contracted with plaintiff orally to procure and maintain full fire and theft insurance on said automobile as long as any part of said note remained unpaid"; that the defendants on May 28th, 1926, procured insurance upon the car in the sum of $1,000.00 for one year; that the automobile was stolen on June 4th, 1927; "that on the said 4th day of June, 1927, plaintiff still owed a portion of the said note and the defendants, and each of them were obligated to maintain theft insurance on said automobile but that, in breach of their contract, they failed and neglected to maintain any theft insurance on said automobile on the said date." The petition prayed judgment in the sum of $800.00 which was alleged to have been the value of the automobile on the date it was stolen.

The answer, among other things, pleads "that no agreement was made with plaintiff orally, but that said alleged agreement of plaintiff with defendants, if any, was wholly without consideration." If there was any defect in the petition in failing to allege a consideration for the contract pleaded, that defect was waived, under the doctrine of express aider, by the allegations of the answer. Webber v. Rodgers et al., 128 Ark. 25, 193 S W. 87, 88; Hughes v. Carson, 90 Mo. 399, 2 S. W. 441.

However, we feel at this stage of the proceeding that the petition must be adjudged to allege, at least by inference, that the consideration for the agreement to procure insurance was the purchase and sale of the automobile to plaintiff. It is well stated in the case of Stevens v. Westport Laundry Co. (Mo. App.) 25 S.W.(2d) 491, 497, and quoting from Timmermann v. Architectural Iron Co., 318 Mo. loc. cit. 429, 1 S.W.(2d) 791, 793:

"An objection to the sufficiency of the petition after verdict is not viewed with favor, and will not be sustained, `if by reasonable intendment, or by fair implication from facts stated, or if by most liberal construction the essential allegation may be got at by inference.'"

We have examined the case of Swift v. Cent. Union Fire Ins. Co., 279 Mo. 606, 216 S. W. 935, cited by defendants and find that the petition in that case alleges substantially nothing more than that an oral contract for insurance was made on a certain day, insuring certain property for a designated time. It was held in that case that there was no consideration alleged, but it is quite apparent that the petition in this case contains much more than that in the Swift Case and that the case at bar clearly alleges by intendment that the insurance constituted a part of the agreement entered into relative to the sale of the car in question.

It is further insisted that the instruction in the nature of a demurrer to the evidence should have been given for the reason that plaintiff seeks to recover under an...