Ennis v. McLaggan
| Citation | 608 S.W.2d 557 |
| Decision Date | 21 November 1980 |
| Docket Number | No. 11559.,11559. |
| Parties | Perry A. ENNIS and Frances Ennis, Plaintiffs-Respondents, v. John J. McLAGGAN, Jr. and Paula L. McLaggan, Defendants, and John W. Allan, Defendant-Appellant. |
| Court | Court of Appeal of Missouri (US) |
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Glenn A. Burkart, Mann, Walter, Burkart, Weathers & Walter, Springfield, for plaintiffs-respondents.
Warren S. Stafford, Taylor, Stafford, Gannaway & Woody, Lloyd Joseph Carmichael, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, for defendant-appellant.
Motion for Rehearing or to Transfer to Supreme Court Denied November 21, 1980.
Appellant contends that the trial court erred in reviving a judgment against him for two reasons: (1) that there was a valid agreement between appellant and respondents that respondents would not revive the judgment as to him, and (2) that the action to revive the judgment was not commenced within ten years of the rendition of the judgment against him.
As appellant's second point requires a partial discussion of the history of this action, we consider it first. On August 12, 1964, respondents brought an action on a promissory note against John J. McLaggan, Jr., Paula L. McLaggan, and appellant, requesting a judgment of $102,889.98 with interest and costs. Appellant was served with the petition and summons on October 10, 1964. No pleadings were filed by appellant or in his behalf until proceedings to revive the judgment were commenced. Defendants McLaggan filed motions; including a motion to dismiss. On December 8, 1966, an interlocutory judgment of default was entered in favor of respondents and against all defendants and on September 15, 1967, a default judgment was entered for $48,446.99. On September 18, 1967, defendants McLaggan filed a motion to vacate and set aside the judgment "against them". On September 22, 1967, the trial court set aside the interlocutory judgment of December 8, 1966, and the "final judgment" of September 15, 1967, because "deft's motion to dismiss has never been ruled on by the court". Thereafter, that motion was overruled, and the McLaggans filed an answer. Following a trial on January 2, 1969, in which appellant apparently did not participate, a judgment was rendered in favor of plaintiffs and against defendants for $44,354.16 and interest and costs. On January 28, 1969, "on its own motion", the trial court set aside the judgment of January 2, 1969, and ordered the case reopened for further evidence. Additional evidence was presented on April 24, 1969, and on May 22, 1969, judgment was rendered in favor of plaintiffs and against defendants for $44,354.16, and interest and costs. A petition for a writ of scire facias to revive the judgment against the McLaggans was filed by respondents on March 26, 1979. On May 21, 1979, a petition requesting a writ of scire facias to revive the judgment against appellant was filed and the writ was issued. Appellant was served with the writ on May 22, 1979.
Appellant contends that a judgment was rendered against him on September 15, 1967, and that the court could not set that judgment aside and later enter a judgment without notice to him. He contends that as no revival was instituted within ten years as provided in Rule 74.36, V.A.M.R., the trial court had no jurisdiction to revive the judgment. Appellant did not plead to the original summons and petition and was in default. As such he was not entitled to any notice. Rule 43.01(a), V.A. M.R., provides that after the original petition, "no service need be made on parties in default" except for pleadings asserting new or additional claims for relief against them. The record does not disclose any new or additional claims for relief and the judgment was entered on the original petition served on appellant. "A judgment is the final determination of the rights of the parties in the action." Rule 74.01, V.A.M.R. A final judgment contemplates that the adjudications as to all parties shall be incorporated into a single order. State ex rel. Turner v. Sloan, 595 S.W.2d 778, 780 (Mo.App.1980); First National Bank and Trust Company of Joplin v. Pittock, 572 S.W.2d 182, 184 (Mo.App.1978). There was no final determination as to all parties as contemplated by Rule 74.01 until May 22, 1969. Therefore, the proceedings to revive the judgment were within ten years of the judgment and were timely. Point two is denied.
We now consider appellant's first point. It is not disputed that the respondents and appellant made an agreement following the judgment. There is a dispute as to the documents that made up that agreement and whether there was sufficient consideration to make any agreement valid and enforceable. All agree that the following written document was a part of the agreement:
The above document was sent with a letter, by respondents' then attorney to one of appellant's attorneys. The letter stated:
Appellant's attorney responded by letter dated October 19, 1978, which stated:
The check, drawn on a bank account in appellant's name, was received and cashed by respondents. The trial court determined that the parties' agreement was unenforceable for lack of consideration but if there was consideration that respondents did not violate the agreement. Appellant contends that the ruling as to consideration was erroneous because the respondents had the burden to plead and prove lack of consideration, which they did not do, and because the agreement was supported by consideration.
We do not agree that the burden of pleading and showing lack of consideration was on respondents. As appellant is relying on the contract for his defense, it is his burden to plead and prove consideration unless the contract is one which imports consideration as a matter of law by virtue of statute. Swift v. Central Union Fire Ins. Co., 279 Mo. 606, 216 S.W. 935, 936 (1919); 17A C.J.S. Contracts, §§ 536, and 583. Appellant contends that § 431.020, RSMo 1978, imports consideration to the agreement, and thus lack of consideration must be pled and proven by respondents. That is the rule when the statute applies Gover v. Empire Bank, 574 S.W.2d 464, 468 (Mo.App.1978), but we do not think that the statute applies here. It provides that an agreement signed by one who promises to pay "any sum of money or property . . . shall import a consideration, and be due and payable as therein specified." It contemplates an agreement to pay in the future, which is not the situation here. In addition, those signing the agreement here did not agree to pay money or property.
Failure of consideration is expressly included in Rule 55.08, V.A.M.R. as an affirmative defense which must be set forth by the party alleging it. However, lack of consideration is not listed in the rule and is different. Failure of consideration implies that a consideration, once existing and sufficient, had become worthless or has ceased to exist; it thus is distinguished from lack of consideration. Shelton v. M & A Electric Power Cooperative, 451 S.W.2d 375, 379 (Mo.App.1970). We do not think that Rule 55.08 includes lack of consideration as "any other matter constituting an avoidance or affirmative defense". Consideration is a necessary element for a valid agreement and the burden of showing it is on the one claiming the benefit of the agreement. Lack of consideration to support the agreement would be a failure of that party's burden and not a defense that would avoid the agreement after its validity was established.
In the type of agreement before us the rule that one relying on a contract must plead and prove consideration has not been changed, either by statute or rule, and thus the burden of showing consideration was on appellant. Respondents are not then barred from claiming lack of consideration because respondents did not plead or offer proof on it.
We next determine if there was consideration for the agreement. Winter v. Kansas City Cable Ry. Co., 160 Mo. 159, 61 S.W. 606 (1900), considered whether a judgment could be satisfied for less than its amount. The court held that a purported satisfaction and release was invalid for lack of consideration; stating that payment of a part of an undisputed debt will not discharge the whole, even if expressly accepted for that purpose (61 S.W. at 612); and that payment of a lesser sum will not discharge a debtor for a greater sum unless the creditor, besides a part payment, receives something of benefit that he would not otherwise have had (61 S.W. at 614). Here there was no indication that respondents received anything other than the monetary payment. Whatever the rule in...
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Structural Polymer Group, Ltd. v. Zoltek Corp.
...and "lack of consideration," which is an element of the claim that cannot be waived through failure to plead. Ennis v. McLaggan, 608 S.W.2d 557, 561 (Mo.Ct.App. 1980); MFA Inc. v. Dettler, 817 S.W.2d 658, 663 (Mo.Ct.App.1991). Assuming for the sake of argument that Zoltek's argument regardi......
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...Moreover the party relying upon the alleged contract of settlement is obligated to plead the matter of consideration. Ennis v. McLaggan, 608 S.W.2d 557 (Mo.App.1980). B. The first possible basis upon which to claim consideration would be the husband's promise to pay $4,500. That must be con......
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...instruction and, therefore, the trial court erred in submitting the instruction. In making its argument, MFA relies upon Ennis v. McLaggan, 608 S.W.2d 557 (Mo.App.1980). In Ennis this court was called upon to decide, as a matter of law, whether there was a difference between "failure" and "......
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...a failure of that party's burden and not a defense that would avoid the agreement after its validity was established." Ennis v. McLaggan, 608 S.W.2d 557 (Mo.App.1980). Thus, there is insufficient evidence to support the court's alternative basis of judgment, and we must agree with defendant......