Di Franco v. Steinbaum

• Decision Date: 08 February 1944
• Docket Number: No. 26533.,26533.
• Parties: DI FRANCO v. STEINBAUM.
• Court: Missouri Court of Appeals

177 S.W.2d 697

DI FRANCO v. STEINBAUM.

No. 26533.

St. Louis Court of Appeals. Missouri.

February 8, 1944.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be reported in State Reports."

Action commenced in a justice court, by Carmelo DiFranco, doing business as White Way Motors, against Morris Steinbaum on a check on which payment was stopped by defendant. Judgment was for defendant in justice court but on appeal to the circuit court a judgment was rendered for plaintiff, and defendant appeals.

Affirmed.

Joseph Boxerman, of St. Louis, for appellant.

Anthony Canzoneri, of St. Louis, for respondent.

McCULLEN, Judge.

This is an action on a check for $670 executed by defendant and payable to the order of White Way Motors on which payment was stopped by defendant. The suit was begun in a justice court where there was a judgment for defendant. On appeal to the circuit court the case was tried before the court, a jury having been waived, resulting in a finding and judgment for plaintiff and against defendant in the sum of $670, with interest at six per cent per annum from February 2, 1942, making a total judgment of $710.87, and costs. Defendant duly appealed.

Plaintiff's petition, on which the cause was tried, alleged that on December 23, 1941, defendant, for value received, executed his check for $670 payable to the order of plaintiff and drawn on the Mutual Bank & Trust Company of St. Louis, Missouri; that thereafter, and before plaintiff by the use of reasonable diligence could present said check for payment, defendant notified said bank not to pay the same; that on December 24, 1941, said check was presented for payment at said bank and payment thereof was refused; that the whole of said check remains due and unpaid. The check was filed with the petition and marked plaintiff's Exhibit A.

Defendant filed no written pleading in either the justice court or the circuit court.

Plaintiff introduced in evidence the check in question and it was marked plaintiff's Exhibit 1. It was dated December 23, 1941, payable to the order of White Way Motors for $670, drawn on the Mutual Bank & Trust Company of St. Louis, Missouri, and was signed "Morris Steinbaum." Attached thereto was a notation of the Mutual Bank & Trust Company "payment stopped."

Plaintiff testified that he was in the used car business under the name of White Way Motor Service; that he was the owner of the business and had been so for about eighteen months prior to the time of the trial; that he and his men took automobiles to W. R. Stone & Co. to be sold at auction; that said company was located in the 3900 block on Forest Park Boulevard; that on December 19, 1941, he took a 1941 Chevrolet automobile to W. R. Stone & Co. to be sold and it was there sold for $680; that his agreement with that company was that it should have $10 commission on every car it sold for him; that plaintiff was to get $670 net on the sale of the car; that on December 23, 1941, he saw defendant at the auction premises of W. R. Stone & Co. and talked with him in one of the offices there; that the premises consisted of a large building, having a platform over which they drove the cars; that there was a stand on which the auctioneer would sit to auction cars there to people all around the platform; that as the auctioneer would sell the cars the prospective buyers would make their bids there; that he saw Steinbaum standing there next to the corner of the platform on December 23, 1941, which was four days after the sale of the Chevrolet car by W. R. Stone & Co., and for which plaintiff had not up to that time been paid; that Mr. Stone at that time made an announcement to the people assembled at the auction place, including plaintiff, that Mr. Steinbaum was going to be associated with him in the business and that anybody that had any money coming should go into the office and Mr. Steinbaum would pay them; that said announcement by Mr. Stone was made in the presence of Mr. Steinbaum; that plaintiff then walked into the office of W. R. Stone & Co. and received from Mr. Steinbaum the check for $670, heretofore described; that in the course of his above-mentioned announcement Mr. Stone described Mr. Steinbaum's financial standing, stating that he was the owner of the Kings-Way Hotel, and also stated that Mr. Steinbaum was going to be a partner in the business and was going to take the business over; that if anybody had any more cars, to bring them on down and they would be sold with the guaranty of Mr. Steinbaum.

With respect to the actual delivery of the check, plaintiff testified that as soon as Mr. Stone made the announcement referred to, plaintiff went in to get his check and when he got into the office Mr. Steinbaum said: "Wait a minute. I want to be sure I have got enough money in the bank"; that Steinbaum called up some one — the witness thought it was defendant's office — after which Steinbaum said to plaintiff: "Well, I can pay this easy. I have got $12,000 or $14,000 more"; that Steinbaum then gave plaintiff the check for $670 (plaintiff's Exhibit 1). At this point plaintiff testified:

"Q. And did you accept this check from Mr. Steinbaum in payment of that ? A. Yes, sir."

Plaintiff further testified that a statement similar to that made by Stone to plaintiff and the people assembled at the auction company platform on December 23, 1941, concerning Mr. Steinbaum, was made by David Kessler, an employee of Steinbaum who was there at that time; that Kessler immediately thereafter wrote out the check for Mr. Steinbaum to sign.

Plaintiff further testified that said check was for the payment of $670 owed to him by W. R. Stone & Co. for the sale of the Chevrolet car; that the check was presented to the bank for payment and came back marked "payment stopped."

On cross-examination plaintiff testified that he and one Joe Meyer had done business with W. R. Stone & Co. for some time prior to December 19, 1941, and that said company had sold many cars at auction for their account, and that plaintiff and Meyer would split the profit, which varied according to the amount realized from the sale of such cars; that on the average Joe Meyer got from ten to fifty per cent of the profits.

Testifying in his own behalf, defendant stated that he knew W. R. Stone & Co. was a corporation; that on December 22, 1941, he met Mr. Stone who asked him to become a stockholder in the Stone corporation; that Stone represented to him that the liabilities of the corporation were $4,000 or $5,000 and that, he, Stone, had given out some checks which he could not make good, and Stone told him that if he, Steinbaum, would pay the $4,000 or $5,000 he could go in for half in the corporation; that he relied on what Stone told him as to what the liabilities were, and, on December 23, 1941, he was at the auction company premises and began writing out checks when he found that the corporation owed between $17,000 and $25,000, and he stopped payment on some of the checks; that he never did become a stockholder in or otherwise connected with W. R. Stone & Co., and did not receive any money or property from W. R. Stone & Co. for the checks he had issued. He denied he was present when Mr. Stone or Mr. Kessler made any statement that he (Steinbaum) would become associated with W. R. Stone & Co. and would pay the dealers the money owed them by that company. He stated that the only time he was at the auction company's place was on December 23, 1941. He admitted that he issued the check for $670 made payable to plaintiff, and stated that when he learned that the liabilities of the company were far in excess of $4,000 he ordered the bank to stop payment on plaintiff's check and other checks he had given to dealers.

David Kessler testified as a witness for defendant that on December 23, 1941, he was working for Mr. Steinbaum; that on that date he was on the premises of W. R. Stone & Co. but was not on that part of the premises where they auctioned off the automobiles; that he was in the office; that he did not make any statement or announcement that Mr. Steinbaum was going to pay the bills of Stone & Co. to the dealers; that on December 23, 1941, while on the premises of the auction company, he wrote out some checks; that the check (plaintiff's Exhibit 1) payable to plaintiff was in the witness' handwriting; that Mr. Steinbaum was there and standing along side of where the witness was sitting at the time he wrote out the checks.

The witness further testified that after December 23, 1941, he met plaintiff at a meeting of the dealers at the Kings-Way Hotel; that he was sure plaintiff was there; that Joe Meyer was present and the witness was introduced by Meyer to plaintiff; that Meyer told the witness that Meyer and plaintiff were in partnership; that the dealers had several meetings at the Kings-Way Hotel and plaintiff was present; that they were trying to reorganize Stone & Co. and had selected a creditors' committee to help straighten out the affairs of that company; that the witness saw plaintiff at several of those meetings; that a creditors' committee was appointed and carried on the business of W. R. Stone & Co. for three or four months thereafter; that Mr. Steinbaum did not participate in any of the meetings after December 23, 1941, and had nothing whatsoever to do with any of the transactions of W. R. Stone & Co.

Plaintiff, in rebuttal, testified that he attended one of the creditors' meetings held at the Kings-Way Hotel after December 23d,...