Elliott v. Harris

• Decision Date: 08 January 1968
• Docket Number: No. 53009,53009
• Citation: 423 S.W.2d 831
• Parties: Blue Sky L. Rep. P 70,763 Jorge A. ELLIOTT, Plaintiff-Appellant, v. Virgil W. HARRIS, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 831

423 S.W.2d 831

Blue Sky L. Rep. P 70,763

Jorge A. ELLIOTT, Plaintiff-Appellant, v. Virgil W. HARRIS, Defendant-Respondent.

No. 53009.

Supreme Court of Missouri, En Banc.

Jan. 8, 1968.

Rehearing Denied Feb. 12, 1968.

Jorge A. Elliott, Kansas City, pro se.

Alder, Morrison & Rixner, John J. Alder, Kansas City, for defendant-respondent.

HENLEY, Judge.

Joint action in one count by Jorge A. Elliott and lewis W. Sanders against Virgil W. Harris to recover amounts paid defendant for the purchase of working interests in certain oil leases on lands in Elk county, Kansas. Plaintiff, Elliott, and defendant filed motions for summary judgment as to Elliott's claim. The court denied Elliott's motion and entered judgment for defendant against Elliott, from which the latter appealed to the Kansas City Court of Appeals. That court affirmed the judgment. On application of appellant we ordered the case transferred to this court. Article V, § 10, Constitution of Missouri, V.A.M.S.

We are met at the outset with the question of whether the judgment entered is final for the purposes of appeal since, so far as the record discloses, no disposition had been made of the claim of Sanders and the judgment entered was not specifically designated as final by the court. The general rule is that a judgment to be final and appealable must dispose of all parties and all issues in the case and leave nothing for future determination. It appears from the pleadings, however, that the two claims, althouth joined in the same action in one count, do not arise out of the same transactions or occurrences; the purchases of interests in the oil leases by the plaintiffs were not joint purchases of a joint interest in their joint names; they were separate purchases of separate interests as their separate property on different dates for different amounts; they were entirely separate and independent claims unrelated to each other. Respondent's answer raised different defenses to each claim. A separate trial was held by the court on the claim of Elliott, and the judgment entered is deemed final for the purpose of appeal, the court not having ordered that it be held in abeyance pending disposition of the other claim. Civil Rule 82.06 (all references to rules are to Rules of Civil Procedure and V.A.M.R.); Lynch v. Webb City School District No. 92, Mo.App., 373 S.W.2d 193, 195(1--3), and cases there cited.

For convenience we will hereafter refer to appellant as plaintiff and to respondent as defendant.

Plaintiff's petition alleges, in substance, that between December, 1962, and June, 1963, he purchased from defendant in Missouri for $2,752.16 an undivided one-sixteenth working interest in an oil and gas lease on Kansas lands (hereinafter sometimes referred to as the Countryman lease); that the interest sold him is a security ¹ within the meaning of chapter 409, RSMo 1959, V.A.M.S., (The Missouri Securities Law; also known as Blue Sky Law) ² prohibiting the sale in this state of securities not registered; that the security was not registered and the sale was in violation of that chapter; that he has rescinded the contract of purchase, demanded return of his money had was refused. He prays judgment for the purchase price plus reasonable attorney's fees as authorized by § 409.240. ³ In his answer defendant admitted the sale, but denied generally other allegations of the petition. By way of special defense he pleaded that chapter 409 did not apply to the sale of this security, because the sale was an exempt transaction under § 409.050, subsection (9). ⁴

As indicated, both plaintiff and defendant filed motions for summary judgment, each motion being supported by the party's affidavit. The motions were submitted on the pleadings, affidavits, and plaintiff's interrogatories and defendant's answers thereto.

Plaintiff states in his affidavit that for the money paid defendant he received defendant's receipt and an operating agreement, and later from one Thomas Rainey an assignment of the interest purchased from defendant; that on March 6, 1964, (after suit was filed) he assigned all of his interest in the lease to defendant and demanded return of the amount previously paid, but that the demand was refused; that thereafter, on March 9, 1964, defendant executed an instrument wherein he agreed to accept an assignment of plaintiff's interest for sale by defendant to Jones and Campbell, Inc., of Shawnee Mission, Kansas, for $1,000, less plaintiff's proportionate share of an outstanding indebtedness against the lease; that he received from defendant $858.94, represented by defendant to be plaintiff's share of the proceeds of the sale of his interest to Jones and Campbell, Inc.; that after deducting this $858.94 and the income received from his interest from the amount he paid for the interest, the balance due him from defendant is $1,692.59.

Plaintiff does not state by his affidavit specifically whether he did or did not accept the proceeds of the sale to Jones and Campbell, Inc., as in full payment of his previous demand, but a reasonable inference is that he did not. The instrument dated March 9 executed by defendant alone has a place for the signature of plaintiff as an 'acceptance' of its terms, but his signature does not appear. We note at this point that although defendant, in his affidavit, refers to the instrument of March 9 executed by him alone as an 'agreement' by plaintiff to reassign the Countryman lease '* * * so it could be sold to a third party * * *,' he does not assert therein that plaintiff accepted the $858.94 as in full payment of the balance allegedly due on the purchase price of the security. We note also at this point that defendant did not plead payment of this sum to plaintiff as an accord and satisfaction although he did plead that defense to the claim of the other plaintiff, Lewis W. Sanders.

Defendant further states in his affidavit that plaintiff did not offer to return the security to him for the amount paid, '* * * even though (plaintiff) entered into a subsequent agreement * * * to reassign the leasehold so it could be sold to a third party * * *;' that he '* * * did not violate the Missouri Securities Law as charged by separate plaintiff, Jorge A. Elliott, in his petition, * * *, for the particular reason that under Sec. 409.050 defendant did not issue or sell securities to 'more than 15 persons in this state during a period of twelve (12) consecutive months', as provided in sub-section (9);' that the sales of interests in the Countryman lease made by him were to buyers who represented that their purchase was for investment purposes, and that he accepted their representations as true.

By answers to interrogatories propounded by plaintiff, defendant stated that interests in the Countryman lease were sold to fourteen persons only, two of whom resided in Kansas; that after November, 1962, he had no interest in the Countryman lease; that he neither executed nor received an assignment of interest in the Countryman lease; that the interests in this lease were not registered with the Missouri Securities Commission; that plaintiff paid him the total sum of $2,752.16 for an interest in the Countryman lease; that he sold plaintiff's interest in the lease to Jones and Campbell, Inc., for $1,000 and paid him that sum, less $153.53 as that interest's proportionate share of indebtedness against the lease.

Plaintiff does not contend that the court erred in denying summary judgment in his favor; his contention is that the court erred in entering summary judgment in favor of defendant, because, he says, genuine issues exist as to material facts, and that defendant is not shown by unassailable proof to be entitled to judgment as a matter of law.

This court said in Maddock v. Lewis, 386 S.W.2d 406, at l.c. 408--409: 'Under Rule 74.04(a) the party moving for summary judgment may file and serve supporting affidavits as respondents have done here. Under Rule 74.04(c) the adverse party (appellant here) may serve opposing affidavits and all affidavits are then considered...