Ellis v. Farmer

• Decision Date: 12 March 1956
• Docket Number: No. 44553,No. 2,44553,2
• Citation: 287 S.W.2d 840
• Parties: J. C. ELLIS, Appellant, v. E. L. FARMER, Respondent
• Court: Missouri Supreme Court

Page 840

287 S.W.2d 840

J. C. ELLIS, Appellant, v. E. L. FARMER, Respondent.

No. 44553.

Supreme Court of Missouri, Division No. 2.

March 12, 1956.

George W. Barham, Blytheville, Ark., Von Mayes, Fred Henley, Carulthersville, Edward F. Sharp, New Madrid, for appellant.

Ward & Reeves, Caruthersville, for respondent.

BOHLING, Commissioner.

J. C. Ellis, appellant, owned and operated the Ellis Gin Company and the Ellis Implement Company at Barfield, Arkansas, and had land in Pemiscot and Dunklin counties, Missouri. E. L. Farmer, respondent, was a farmer raising cotton, soybeans and other crops. Under arrangements made, appellant was to 'furnish,' that is, advance credit or funds for respondent's production of crops, living expenses et cetera, and respondent was to deliver his crops to appellant for credit on his account when sold and payment to respondent of any surplus. This suit involves their transactions for the crop years 1947 through 1950, and resulted in a judgment on respondent's counterclaims against appellant for $97,731.68.

On January 22, 1952, appellant sued respondent in replevin. The action was based on a $24,816.50, February 28, 1950, note, payable October 15, 1950, having a balance due of $15,640.64, secured by a chattel mortgage on certain farm machinery and equipment of respondent. A replevin bond was given and the property was sold on February 2, 1952, for $7,755.50.

Respondent filed answer and counterclaims. Respondent admitted the execution of the note and chattel mortgage, but alleged they were without consideration and were the result of fraud chargeable against appellant in their business transactions. Respondent asked judgment against appellant in connection with his answer for the value of said farm machinery and equipment; and in his counterclaims, in separate counts, judgments for what respondent claimed due from appellant on a proper accounting and for which credits had not been given for the crop years 1947, 1948, 1949 and 1950, being Counts 1, 2, 3 and 4, respectively, of the counterclaims; and in Count 5 for $23,750 on the theory respondent had deeded his home place of a value of $30,000 to appellant in 1951 for a purported balance due appellant of $30,000, which respondent did not owe, less $6,250 'furnish' thereafter received from appellant; and in Count 6 for $1,350 for the sale of an Allis-Chalmers tractor to appellant; and in Count 7 for $1,550 for hauling cotton to appellant's gin in Arkansas.

The issues involved 'a long and complicated account,' according to appellant's motion for the appointment of a referee, and, the parties agreeing, a referee was appointed. The trial began September 17, 1953. The referee's findings were in favor of respondent, with the exception of Count 7.

Judge Arthur U. Goodman of the Twenty-second Judicial Circuit was called in upon Judge Joseph H. Allen, of the Pemiscot county circuit court, disqualifying. The referee's report was confirmed in full and judgment was entered accordingly.

The judgment, entered June 29, 1954 (overruling the exceptions of appellant to the report of the referee), confirmed and approved the findings of fact and conclusions of law of the referee, in favor of respondent on appellant's petition and respondent's answer in the sum of $17,916.41 ($15,640.64 plus $2,275.77 interest); for respondent on his counterclaims as follows: Count I, $14,177.34 ($10,313.91 plus $3,863.43 interest); Count II, $11,491.64 ($8,741.06 plus $2,750.58 interest); Count III, $1,694.21 ($1,350.30 plus $343.91 interest); Count IV, $22,997.16 ($19,249.75 plus $3,747.41 interest); Count V, $27,599.16 ($23,750 plus $3,849.16 interest); Count VI, $1,855.76 ($1,350 plus $505.76 interest); and on Count VII, for the appellant and against the respondent. The amounts first stated within the parenthesis supra are the principal sums found by the referee in his report filed March 2, 1954. The costs were taxed against appellant.

Respondent's motion to dismiss appellant's appeal was ordered taken with the case. Briefly stated and so far as essential to a ruling, the motion charges that appellant failed to comply with Supreme Court Rule 1.08, 42 V.A.M.S., in that: (1) Appellant failed to make a fair and concise statement of the facts without argument, charging misstatement of facts, omission of facts favorable to respondent, and statements of conclusions and argument. (2) Appellant's statement failed to state the facts relevant to or understandably disclose the legal issues for determination. (3) Appellant's statement fails to show the specific page references of the transcript involved. (4) Appellant's 'Points' are abstract statements.

This case has been twice submitted to this court. Respondent had filed a motion to dismiss the appeal prior to the first submission for failure of appellant's brief to comply with Rule 1.08. Appellant filed a new brief on the second submission. Being forewarned, we perceive of no valid excuse for the failure of counsel to fully comply with Rule 1.08 on the second submission. The rules are not difficult to follow. The work of this court and the rights of other litigants to have their appeals determined within a reasonable time call for a compliance with the rules that we may promptly discharge our duties free of unnecessary labor and loss of time occasioned by issues that have no place in the case upon a proper presentation of the real issues on a client's appeal.

In court tried cases Section 510.310(4) RSMo 1949, V.A.M.S. provides: 'The question of the sufficiency of the evidence to support the judgment may be raised whether or not the question was raised in the trial court. The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature.' See also Sec. 512.160, Rule 3.23; Allen v. Allen, 364 Mo. 955, 270 S.W.2d 33, 34. Rule 3.27 states: 'Plain errors affecting substantial rights may be considered * * * on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.' Appellate courts in equity cases review the evidence, determine its value and weight, and, with due deference to the findings of the chancellor, reach their own decisions on the merits. Peikert v. Repple, 342 Mo. 274, 114 S.W.2d 999, 1002, citing cases; Schebaum v. Mersman, Mo., 191 S.W.2d 671, 674; Parks v. Thompson, Mo., 285 S.W.2d 687, 692.

We understand from the statement in appellant's brief that respondent sought to defeat the note and chattel mortgage sued on, and for recoveries against appellant on the grounds of want of consideration and for fraud chargeable to appellant. While appellant's brief is not as liberal with page references to the transcript as might be, the brief does contain page references to what counsel considered the more material facts. (Some assertions in respondent's brief are unsupported by references to the transcript.) Appellant's brief mentions that respondent's evidence on the bales of cotton et cetera for which he claimed he should have received credit was given wholly from memory. Not all of appellant's points are abstract statements of law. Appellant's instant brief is an improvement over his first brief.

We mention here in connection with the foregoing and a point in respondent's brief that the findings of the referee in favor of respondent and against appellant were general rather than specific in nature. The essence of appellant's Statement, Points and Argument is the issue presented in the trial court in exceptions to the referee's findings and motion for new trial; that is, that the proof offered by respondent, respondent having the burden, was not sufficient to overcome the evidence in the case favorable to appellant and respondent was not entitled to the judgment. This is sufficient for overruling the motion to dismiss. Feigenbaum v. Van Raalte, 356 Mo. 67, 201 S.W.2d 283, 284; Billings v. Independent Mut. Fire Ins. Co., Mo.App., 251 S.W.2d 393, 396; Leslie v. Mathewson, Mo.App., 257 S.W.2d 394, 396[2, 3]. Consult Baerveldt & Honig Const. Co. v. Dye Candy Co., 357 Mo. 1072, 212 S.W.2d 65; In re Duren, 355 Mo. 1222, 200 S.W.2d 343, 344[1, 2], 170 A.L.R. 391, affirming on the point, Mo.App., 195 S.W.2d 745, 749. Conclusions or arguments in a statement do not justify a dismissal where the essential facts determinative of the issue or issues presented may be ascertained from the statement. Kirkpatrick v. Wabash R. Co., 357 Mo. 1246, 212 S.W.2d 764, 765. Appeals are not lightly dismissed. The instant respondent's statement presents his view of the case on points mentioned in appellant's brief. See Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96, 100; Laun v. Union Electric Co., 350 Mo. 572, 166 S.W.2d 1065, 1073, 144 A.L.R. 622; See v. Wabash R. Co., 362 Mo. 489, 242 S.W.2d 15, 16[1, 2].

Respondent says appellant's ledger account showing the charges and credits between appellant and respondent was not in evidence.

Appellant, at respondent's request, produced his 'books and records involved' at the hearing. Appellant, in addition to his merchandising and ginning business, had fifteen tenants. He testified that he was not at the gin all day, but was there for a while every morning and afternoon. Monte Isaac, his bookkeeper for nineteen years, made practically all of the entries. Isaac had full authority to transact business for appellant. Respondent testified he transacted all his business with Isaac, the bookkeeper. Appellant had personal knowledge of only a few of the many transactions and entries in his books, and could not swear from personal knowledge that the books and records were correct. He was general manager of the business. The books and records were kept under his supervision in the usual course of the business. He examined them about once a month, transacted his...