First Nat. Bank v. Dunbar et al., No. 22547.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtMcCullen
Citation72 S.W.2d 821
Docket NumberNo. 22547.
Decision Date22 June 1934
72 S.W.2d 821
No. 22547.
St. Louis Court of Appeals. Missouri.
Opinion filed June 22, 1934.

[72 S.W.2d 822]

Appeal from the Circuit Court of City of St. Louis. — Hon. Granville Hogan, Judge.

AFFIRMED AND CAUSE REMANDED (for further proceedings).

Taylor, Chasnoff & Willson, James S. McClellan and James V. Dunbar for appellants.

(1) By filing a motion for judgment notwithstanding the verdict plaintiff waives his right subsequently to file a motion for new trial. Meffert v. Lawson, 287 S.W. 610; Hurt v. Ford, 142 Mo. 283; King v. Grocer Company, 188 Mo. App. 235; Blodgett v. Koenig, 284 S.W. 505; McComas v. The State, 11 Mo. 116; Gill v. Farmers' & Merchants' Bank, 195 S.W. 538; Ruling Case Law, Vol. 15, p. 682. (2) A pledgee who sells collateral at an illegal sale is guilty of a conversion thereof, and is liable to the pledgor in an amount equal to the value of the collateral as of the date of sale. Laclede National Bank v. Richardson, 156 Mo. 270; Hagan v. Continental National Bank, 182 Mo. 319; Ely Walker Dry Goods Co. v. Karnes, 9 S.W. (2d) 245. (3) The measure of damage for the conversion of a chose in action is prima facie the face value thereof. Ruling Case Law, Vol. 21, p. 679; O'Donoghue v. Corby, 22 Mo. 393; Menkens v. Menkens, 23 Mo. 252; Bredow v. The Mutual Savings Institution, 28 Mo. 181; Skeen v. The Springfield Engine & Thresher Co., 42 Mo. App. 158. (4) A tender of a smaller sum than that demanded is never necessary where it appears that such tender would be met with refusal to receive the amount if tendered. Westlake & Button v. The City of St. Louis, 77 Mo. 47. (5) It is not necessary for the pledgor, when sued by the pledgee on the principal debt, to make a tender of the indebtedness due the pledgee as a condition precedent to his right to assert a set-off or counterclaim based upon the conversion of collateral by the pledgee. Corpus Juris, Vol. 49, pp. 990-991; Richardson v. Ashby, 132 Mo. 238; Rush v. First Nat. Bank of Kansas City, 71 Fed. 102; Waring v. Gaskill, 95 Ga. 731; Leonard v. Lehman (Iowa), 220 N.W. 77. (6) Legal conclusions announced on a first appeal become and remain the law of the case in all further proceedings whether below or above on subsequent appeal. Denny v. Guyton, 57 S.W. (2d) 415; Mangold v. Bacon, 237 Mo. 496.

Bryan, Williams, Cave & McPheeters for respondent.

(1) The filing and overruling of a motion for judgment notwithstanding the verdict does not waive the right to file a motion for a new trial which was filed within the statutory time for filing such motion. (a) There is a marked difference between a motion for judgment notwithstanding the verdict and a motion in arrest of judgment. Hurt v. Ford, 142 Mo. 283; Blodgett v. Koenig, 314 Mo. 262; R.S. Mo., secs. 1005, 1006, 1018. (b) The universal rule is that a motion for a new trial may be filed even after a motion for judgment notwithstanding the verdict has been overruled. 46 C.J., pp. 65, 66; Fisk v. Henarie, 15 Ore. 89; Hall Oil Co. v. Barquin, 33 Wyo. 92; Carkonem v. Columbia, etc., R. Co., 86 Wash. 473; Sallden v. City of Little Falls, 102 Minn. 358; Nelson v. Grondahl, 12 N.D. 130; Fink v. Superior Court (Cal. App.), 288 Pac. 124; Goedecke v. People, 125 Ill. App. 645; Rodriguez v. Merriman, 133 Ill. App. 372; Zink Co. v. R.R. Co., 87 Kans. 186. (2) Appellants' answer, which undertakes to raise an affirmative defense, fails to state any ground of defense and its insufficiency, as a matter of law, may be raised at any time. Jackson et al. v. Kansas City Bolt & Nut Co., 238 Mo. 656, l.c. 659; Hudson v. Cahoon, 193 Mo. 547, l.c. 558; McGrew v. Railroad, 230 Mo. 491; Denny v. Guyton, 327 Mo. 1030, l.c. 1047; Chandler v. Railroad, 251 Mo. 592, l.c. 599; Koenig v. Truscott Boat Mfg. Co., 155 Mo. App. 685. (3) It is well settled that where a pledgee of collateral has bought in and still holds such collateral, the pledgor cannot recover for an alleged conversion of the collateral without tendering payment of the original debt. Amick v. Empire Trust Co., 317 Mo. 157; Schaaf v. Fries, 90 Mo. App. 111; McClintock v. Central Bank, 120 Mo. 127; Greer v. Lafayette County Bank, 128 Mo. 559; Nevius v. Moore, 221 Mo. 330; Glidden v. Mechanics' National Bank (Ohio), 43 L.R.A. 737; Holston National Bank v. Wood (Tenn.), 140 S.W. 31; Bryan v. Baldwin, 52 N.Y. 232; Winchester v. Joslyn (Colo.), 72 Pac. 1079; Carey v. Birmingham National Bank (Ala.), 9 So. 291; Bank of Old Dominion v. Dubuque & Pacific R.R., 9 Iowa, 277; Killian v. Hoffman, 6 Ill. App. 200; First National Bank v. Rush, 85 Fed. 539. (a) Tender of payment cannot be held to have been waived unless the evidence clearly and affirmatively shows that such tender would have been nugatory and useless because it would not have been accepted. Hoyt v. Sprague (N.Y.), 61 Barb. 97; Indiana Bond Co. v. Jameson (Ind.), 56 N.E. 37; Insurance Co. v. Weedon (Ind.), 118 N.E. 842, l.c. 846. (4) The instructions given were erroneous, in that they declared that the jury might consider the face value of the voucher to be prima facie its value at the time of the sale. Wylde v. Schoening, 96 Wash. 86. (5) The principle of res judicata should have prevented the submission of the defendants' counterclaim to the jury at the second trial, since there was a binding prior adjudication and judgment for respondent on appellants' counterclaim. First National Bank of Zeigler v. Monie & Dunbar, 31 S.W. (2d) 257.


This cause is before this court for the second time on appeal. Respondent, hereinafter called plaintiff, brought the action to recover the balance due upon a promissory note made by George L. Dunbar and John M. Monie, defendants, dated January 13, 1926, payable to the order of plaintiff six months after dated, in the sum of $3,372.48, with interest.

At the conclusion of the first trial the court directed a verdict for plaintiff and against defendants on defendants' counterclaim, but submitted to the jury the question of defendants' liability to plaintiff on plaintiff's cause of action, resulting in a verdict thereon for defendants. The trial court overruled defendants' motion for a new trial on their counterclaim, but sustained plaintiff's motion for a new trial on its cause of action. Defendants appealed to this court, where the judgment of the trial court sustaining plaintiff's motion for a new trial was affirmed and the cause remanded. [See First National Bank of Ziegler, Illinois, v. Dunbar et al., 31 S.W. (2d) 257.]

After the mandate of this court went down the cause was again tried without any change having been made in the pleadings.

The petition of plaintiff alleged that defendants, by their promissory note, dated January 13, 1926, promised to pay plaintiff or order, six months after date, the sum of $3,372.48, with interest from date at the rate of seven per cent per annum until paid, and that as collateral security for the payment of said note defendants pledged a special assessment tax voucher of the City of Ziegler, Illinois, dated January 10, 1923, in the sum of $4,500.

Plaintiff further alleged that no part of said note had been paid except $100, which was realized from the sale of the aforesaid collateral; that the sale of the collateral had been duly advertised and the same was sold on May 9, 1927, at the City of Ziegler, Illinois. Plaintiff prayed judgment against defendants for $3,272.48, with interest at seven per cent per annum from January 13, 1926. The promissory note in question, marked plaintiff's Exhibit A, was attached to plaintiff's petition. A copy of the notice of the sale of the collateral

72 S.W.2d 823

was also attached to plaintiff's petition and marked plaintiff's Exhibit B.

In their amended answer defendants, after denying each and every allegation in plaintiff's petition, admitted that they made and delivered to plaintiff the promissory note mentioned, and that they delivered to and pledged with plaintiff contemporaneously with said promissory note, the special assessment tax voucher referred to in plaintiff's petition.

Defendants further alleged that the sale of the collateral by plaintiff for the sum of $100 was invalid because the notice of the sale did not state by what authority or what power the sale was to be made; that it did not state the ownership of the collateral; that it did not state in whose behalf the sale was to be made; that it did not sufficiently describe the collateral; that it failed to state that said collateral bore interest at six per cent per annum from the date thereof until paid; that the sale was not held in a public place, but was held in plaintiff's private banking room in Ziegler, Illinois, and that plaintiff failed to exercise reasonable diligence to secure a fair price for the collateral at said sale, and that the sum of $100 realized at said purported sale was wholly and unconscionably inadequate.

The amended answer then alleged that by reason of the foregoing allegations the sale of the collateral was void and of no effect and that plaintiff thereby became indebted to defendants in a sum equal to the reasonable value of said tax voucher collateral as of the date of the purported sale thereof; that the reasonable value of said tax voucher was the face value thereof, namely, $4,500, together with accrued interest thereon, making a total of $5,670.

Following the above mentioned allegations, the amended answer alleged that:

"Defendants state that there was due and owing from defendants to plaintiff, on account of said promissory note and interest thereon, as of the date of said purported sale, the sum of three thousand six hundred eighty-seven dollars and thirteen cents ($3,687.13), to the payment of which the defendants were entitled to have applied, and the plaintiff was required to apply, so much of the aforesaid indebtedness owing...

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