Fitzgibbon Discount Corp. v. Hatchett
| Decision Date | 16 April 1968 |
| Docket Number | No. 32824,32824 |
| Citation | 427 S.W.2d 786 |
| Parties | FITZGIBBON DISCOUNT CORPORATION, a Corporation, Plaintiff-Appellant, v. Morris HATCHETT, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Rodney Weiss, Sanford Goffstein, Jerome S. Kraus, St. Louis, for plaintiff-appellant.
Morris Hatchett, St. Louis, for defendant-respondent.
This is an action on a promissory note brought by Fitzgibbon Discount Corporation against Morris Hatchett. The suit was originally filed in the Magistrate Court and a trial therein resulted in a judgment for the defendant. Thereafter, plaintiff appealed to the Circuit Court, where a jury was waived and the cause 13th day of August, 1963, defendant for in a finding and judgment for defendant. Plaintiff has appealed from the judgment.
Plaintiff's petition alleged that on the 13th day ofAugust, 1963, defendant for value received, executed and delivered to Parkway Motors a promissory note of that date by which he promised to pay to the order of Parkway Motors the sum of One Thousand Nine Hundred Twenty-nine Dollars and Sixty Cents ($1,929.60) together with ten per cent attorney's fees and interest at the highest lawful rate, said payments to be made in installments of Eighty Dollars and Forty Cents ($80.40) on the 13th day of September, 1963, with subsequent installments of a like amount on the 13th day of each month thereafter.
The petition further alleged that before maturity of said note, Parkway Motors by endorsement, transferred said note to plaintiff who was the present owner and holder thereof; that the entire amount, One Thousand Nine Hundred Twenty-nine Dollars and Sixty Cents ($1,929.60) was due and payable together with interest and attorney's fees. The prayer of the petition was judgment for the amount alleged to be due together with interest and attorney's fees.
Defendant filed a pleading which he denominated as an answer and cross-bill. In said pleading defendant denied specifically that he ever delivered to Parkway Motors any instrument, either negotiable or otherwise; that the note referred to in plaintiff's petition was not the note of defendant and that plaintiff had been so informed in September, 1963, when the first payment was requested; that plaintiff had received payments on the alleged note from Freddie Clemmons doing business at that time as Parkway Motors; that plaintiff well knew that defendant was not indebted to plaintiff and that the suit was instituted maliciously and capriciously; that plaintiff had caused defendant great inconvenience, mental anguish, and damaged defendant's credit in the community and exposed defendant to public humiliation. There was a prayer for Three Hundred Dollars ($300.00) actual damages, and Two Thousand Dollars ($2,000.00) punitive damages.
To make its case, plaintiff introduced the note sued on. Said note was in the sum of $1,929.60 and was dated August 13, 1963. The payee named therein was Parkway Motors, and said note was signed by Morris Hatchett.
James Smythe, plaintiff's collection manager testified that the note was purchased from Parkway Motors, and produced a canceled check in the sum of $1,450.00 signed by Mr. Fitzgibbon, President of Plaintiff Corporation, which was endorsed on the back by Parkway Motors. He also gave testimony that nothing had been paid on said note though demand had been made for payment. It also appears that Parkway Motors was a trade name used by Fred Clemmons operating as individual. Plaintiff had been doing business with Mr. Clemmons for two or three years beginning in 1961.
Defendant, testimony on his own behalf, stated that on August 10, 196o, he negotiated the purchase of an automobile from Healey Ford. At that time he attempted to finance the balance of the purchase price through Fitzgibbon Discount Corporation. He took the automobile from Healey Ford to plaintiff Corporation for observation and to exhibit the papers on the transaction. Fitzgibbon agreed to finance the deal, and he told them he would deliver his check to Healey Ford for the balance of the payment due, being $1,450.00. Apparently nothing was done at this time to consummate the agreement. Several days later defendant left town on a vacation driving the automobile in question. While away, at the request of Healey Ford, he brought the automobile back to St. Louis. His check had not been honored. Several days later he contacted Fitzgibbon Discount Corporation and was informed that their check to Parkway Motors had been cleared. Plaintiff then contacted Mr. Clemmons and took him to the Fitzgibbon Discount Corporation. Defendant testified that at this meeting, Mr. Fitzgibbon said that the account was not his, and that payment was to be made by Mr. Clemmons. This transpired approximately the first part of September, 1963. Afterwards, Mr. Clemmons was sentenced for a term in the penitentiary. Thereafter, according to defendant's testimony he was threatened with this lawsuit, and subsequently the suit was filed. He also testified that at no time did he receive any money from the Fitzgibbon Corporation. Defendant further testified that when he signed the note that part which reads 'Parkway Motors' was not in the note, but was inserted later.
On cross-examination, defendant admitted his signature to the note. He further stated that Mr. Clemmons was a client, and that he had represented Mr. Clemmons for fourteen years. Defendant was an attorney having been admitted to the practice for sixteen years. He stated ...
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