Edwards v. Sittner

Decision Date03 December 1947
Docket NumberNo. 6731.,6731.
Citation206 S.W.2d 578
CourtMissouri Court of Appeals

Appeal from Circuit Court, New Madrid County; James V. Billings, Judge.

"Not to be published in State Reports."

Action by W. S. Edwards, Sr. against Jesse P. Sittner, for breach of contract, an accounting, appointment of a receiver, and other relief. From an order granting defendant's motion to dismiss the petition, plaintiff appeals.

Appeal dismissed.

Edward F. Sharp and Henry C. Riley, both of New Madrid, for appellant.

James V. Conran, of New Madrid, for respondent.


This is an appeal from the circuit court of Dunklin County where the cause had gone on a change of venue from New Madrid County. The original petition was a suit on a contract wherein plaintiff alleged that on the 12th day of October, 1945, he had entered into a written contract with defendant under the terms of which he had advanced to defendant the sum of $2,603.00, in cash, to make a down payment on a tractor and other equipment. The written contract was set out en haec verba, and was as follows:

"In as much as I have on this date, advanced to you $2,603.00 as the first payment on a D-6 tractor, and as a part of the consideration inducing me to make such advancement, it is agreed that, I shall within one year from this date, have the right and option to purchase from you ½ interest in said tractor, at its cost price.

"It is further agreed that you are to have the tractor do some work for me, the amount at this time cannot be determined and also that you will do some work on your own property and in farming and it is agreed that, each of us shall pay all operation costs (not breakage or repair), on our respective jobs and in addition thereto, for each hour each of us use said tractor, we shall, for such hours, pay into a sinking fund, to be kept by W. S. Edwards, the sum of $2.00 per hour, which shall be used to keep up repair and reduce the sum of $2,603.00 above named.

"Where said tractor is used on some other work other than the parties hereto, all the net earnings shall be paid over to W. S. Edwards to liquidate the above debt of $2,603.00.

"Each party is to have said tractor work for him approximately same number of hours."

(Duly signed by Plaintiff and Defendant.)

It was alleged that the defendant had failed to make certain payments on the indebtedness, that the plaintiff had taken advantage of an option to acquire a one-half interest in the equipment, but defendant had used it for himself and others, but had failed to account for the money received and had appropriated it to his own use. That the defendant was probably insolvent and the plaintiff had no adequate remedy at law. The prayer was for an accounting and the appointment of a receiver to take charge of the property, dispose if it and pay each party such amount as it was entitled to.

A motion to make the petition more definite and certain was filed and sustained and the plaintiff filed his first amended petition. The first amended petition stated plaintiff and defendant, on the 12th day of October, 1945, entered into an agreement, part in writing and part verbal, by the terms of which plaintiff and defendant were to purchase the equipment, each owning an undivided one-half interest therein as partners; that plaintiff paid the down payment of $2,603 by check to the seller of the equipment and defendant gave a note secured by a chattel mortgage for $4500, being the balance of the purchase price; that "on the same date and at the same time and as part of the same agreement" plaintiff entered into a certain written contract, and then is set out the same contract pleaded in the first petition.

It was alleged that they were co-partners but that the defendant had appropriated the property to his own use, failed to account to plaintiff except as to certain items (specifically set forth), that the plaintiff was in danger of losing his investment, that defendant was insolvent and plaintiff had no adequate remedy at law. The prayer was for an accounting, and the appointment of a receiver, that the receiver be authorized to sell the equipment, divide the proceeds as the interest of each might appear and that plaintiff have a lien on the property for the amount due him.

To this first amended petition defendant filed a demurrer (later amended to be entitled a "Motion to Dismiss") asserting that no cause of action was stated therein and further that the first amended petition was a departure from the original. Later defendant filed a "Motion to Quash and Dismiss the Plaintiff's Petition" alleging practically the same grounds.

After a hearing on the motion to...

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8 cases
  • Collier v. Smith
    • United States
    • Missouri Court of Appeals
    • July 23, 1956
    ...Lines, 355 Mo. 695, 197 S.W.2d 657, 659(2); Farmers Mut. Hail Ins. Co. v. Garnand, Mo.App., 238 S.W.2d 437, 438(2); Edwards v. Sittner, Mo.App., 206 S.W.2d 578, 580(2).8 Mack v. Mack, Mo., 281 S.W.2d 872, 873(1); Ewing v. Kansas City, 350 Mo. 1071, 169 S.W.2d 897, 900(3); Higgins v. Smith, ......
  • Kansas City v. Howe, 24627
    • United States
    • Missouri Court of Appeals
    • June 5, 1967
    ...have jurisdiction before we attempt to decide this appeal and this is true whether our jurisdiction is challenged or not. Edwards v. Sittner, Mo.App., 206 S.W.2d 578; Farrell v. DeClue, Mo.App., 365 S.W.2d 68; Allen v. Smith, Mo.App., 375 S.W.2d 874; 2 Mo.Digest, Appeal and Error, Our concl......
  • Edwards v. Sittner
    • United States
    • Missouri Court of Appeals
    • September 13, 1948
    ...subject to mortgage, and division of proceeds. From a judgment for the defendant, the plaintiff appeals. Judgment affirmed. See also 206 S.W.2d 578. Edward F. Sharp and Henry C. Riley, both of New Madrid, for James V. Conran, of New Madrid, for respondent. VANDEVENTER, Presiding Judge. This......
  • Rodriguez v. Rodriguez
    • United States
    • Arizona Court of Appeals
    • June 20, 1968
    ...Lumber Company v. Haggard, 139 Mont. 105, 360 P.2d 794 (1961); Vordenbaum v. Ackermann, 403 S.W.2d 362 (Tex.1966); Edwards v. Sittner, 206 S.W.2d 578 (Mo.App. 1947); Villiainen v. American Finnish Workers Society, 236 Minn. 412, 53 N.W.2d 112 The appellee had no 'minimum contacts' with Ariz......
  • Request a trial to view additional results

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