Dimick v. Snyder

• Decision Date: 26 January 1931
• Docket Number: No. 17057.,17057.
• Parties: DIMICK v. SNYDER.
• Court: Missouri Court of Appeals

34 S.W.2d 1004

DIMICK v. SNYDER.

No. 17057.

Kansas City Court of Appeals. Missouri.

January 26, 1931.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by E. T. Dimick against D. T. Snyder, doing business as Snyderhof Hotel. Judgment for plaintiff, and defendant appeals.

Reversed.

Thurman L. McCormick, of Kansas City, for appellant.

Jerome M. Joffee, of Kansas City, for respondent.

ARNOLD, J.

This is an action seeking to recover from defendant the contract price specified in three certain written contracts, as rentals for the erection and maintenance of highway bulletins. The suit was originally instituted in the court of a justice of the peace of Kaw township, Jackson county, Mo., by filing therein on November 15, 1927, a petition in words and figures, as follows:

"Comes now plaintiff and for his cause of action against defendant states that plaintiff is engaged in the billboard advertising business in Kansas City, Missouri, and prior to October 1, 1927, entered into certain advertising contracts, copies of which are hereto attached, with the former managers of the Snyderhof Hotel at 917 Oak Street in Kansas City, Missouri; that on or about October 1 1927, defendant took over the ownership and management of said hotel, accepted the benefits of said contracts, paid the amounts due thereon for the month of October, 1927, and otherwise assumed and agreed to fulfill the terms thereof; that payments under said contracts totaling $135.85 were due thereon November 1st, 1927, and that although due demand therefor has been made of and upon defendant, defendant has refused and failed to pay the same.

"Wherefore, plaintiff prays judgment against defendant for $135.85 and for his costs herein."

On December 9, 1927, defendant filed formal answer which is, first, a general denial, and as affirmative defense avers that the alleged promise and agreement on the part of defendant to assume and perform the contracts between plaintiff and E. Heathman, doing business as the Snyderhof Hotel, is void under and by virtue of the statute of frauds, designated as section 2169, R. S. Mo. 1919; that said alleged promise and agreement is void and without force and effect, in that it is an attempt to compel defendant to answer for the debt, default, or miscarriage of another person; an attempt to compel defendant to perform an alleged oral promise or agreement with respect to an interest in or concerning lands, tenements, and hereditaments, or a lease thereof for a longer period than one year, with no written memorandum concerning the same; an attempt to compel defendant to perform an alleged oral promise or agreement not to be performed within one year from the date thereof without any written memorandum or note thereof, all in violation of the statute of frauds; that the justice court is without jurisdiction, in that the cause attempted to be alleged is one cognizable in equity only.

On December 9, 1927, defendant filed his motion to dismiss the cause upon the grounds that the same is barred under the provisions of the statute of frauds, and because the said court is without jurisdiction in equity cases. This motion was overruled, the cause was tried and judgment entered for plaintiff in the sum of $135.85. Defendant duly appealed to the circuit court, upon the pleadings and transcript, where the cause was tried to the court, without the aid of a jury, resulting in a finding and judgment for plaintiff in the sum of $135.85. Motions for a new trial and in arrest of judgment were ineffectual, and defendant has appealed.

The facts of record are that in 1927, the Snyderhof Hotel, located at 917 Oak street in Kansas City, Mo., was being operated by E. S. Heathman and T. W. Hulsey, as a copartnership, under the firm name of Hulsey & Heathman, under a lease from the owner thereof, David T. Snyder. On or about February 25, 1927, Hulsey & Heathman entered into certain written contracts with the plaintiff, E. T. Dimick, to advertise said hotel for a specified price named in the said contracts, for a term of three years, payable monthly, in the sum of $135.85, by the erection and maintenance along specified highways leading into Kansas City, of certain bulletin boards. These contracts were three in number, and were signed by the respective parties, Mr. Dimick, for himself, and Mr. Heathman for and on behalf of Hulsey & Heathman. These boards were erected and placed as provided in the contracts and the payments were made by Hulsey & Heathman up to the month of October, 1927. Prior to said month the partnership of Hulsey & Heathman had fallen in arrears in the payment of rental for the hotel building, and defendant took possession of the property, as of October 1, 1927; but Hulsey & Heathman continued to operate the same up to October 11, 1927, with the understanding that an adjustment of the affairs would be made as of October 1, 1927. On or about October 11, 1927, the hotel was taken over by defendant herein and operated by him; he paid the rentals on the signboards here in issue for the month of October, 1927, then due.

At this point the testimony is conflicting. Defendant testified that he permitted his agents and representatives to pay the rentals due on the signboards for the month of October only because he desired to be reasonable and fair; that in connection with said payments he, personally, told plaintiff early that month that he did not want the highway bulletin boards and would not take them over and fulfill the contracts entered into between plaintiff and Hulsey & Heathman, and he would pay no more rentals after October, 1927. Plaintiff testified he had talked with defendant relative to keeping the bulletins, but defendant did not say at any of these talks that he would not keep them; that on November 1, 1927, defendant did notify plaintiff he would not keep them. Attempts were made to collect the rentals for the bulletins for the month of November, 1927, but, being unsuccessful, this suit was instituted in the justice court, as stated, to collect the rental for the month of November. It is not disputed that there was no written or oral contract between plaintiff and defendant that the latter would perform the obligations of Hulsey & Heathman in respect to the bulletins for which they contracted, and there was no written memorandum to that effect. Plaintiff testified that, from the fact that defendant paid the October installment, he assumed defendant would perform the contracts in full; that it was upon this assumption and this alone that he claimed defendant was liable.

Plaintiff has not favored us with a brief, and therefore we are somewhat at a loss to know just what is his theory of the case. While it may be true that he bases his cause of action upon the fact that payment by defendant of the October rental was part performance of the contracts and thereby defendant was bound and obligated to carry out and perform the same in their entirety, yet we think the pleadings and proof susceptible of another construction, not so favorable to defendant. As stated, the suit was instituted in a justice court where no formal pleadings are required. The petition, filed in the justice court and upon which the cause was tried in the circuit court, recites: "That on or about Oct. 1, 1927, defendant took over the ownership and management of said hotel, accepted the benefits of said contracts, paid the amounts due thereon for the month of October, 1927, and otherwise assumed and agreed to fulfill the terms thereof. * * *" From this allegation, we are unable to determine whether plaintiff relies for his cause of action on the ground that he is entitled to recover from defendant because defendant paid the rent for October and thereby assumed the payments for the remainder of the contract period of three years, or whether plaintiff relies upon the allegation that defendant "otherwise assumed and agreed to fulfill the terms thereof. * * *"

As above stated, the answer pleads the statute of frauds; and it is urged the petition fails to state facts sufficient to constitute a cause of action against defendant. In this connection it is argued the suit is brought to recover on the written contract...