George D. Hope Lumber Co. v. Stewart

• Decision Date: 22 May 1922
• Docket Number: No. 14351.,14351.
• Citation: 241 S.W. 675
• Parties: GEORGE D. HOPE LUMBER CO. v. STEWART
• Court: Missouri Court of Appeals

241 S.W. 675

GEORGE D. HOPE LUMBER CO. v. STEWART

No. 14351.

Kansas City Court of Appeals. Missouri.

May 22, 1922.

Appeal from Circuit Court, Cass County; Ewing Cockrell, Judge.

"Not to be officially published."

Action by the George D. Hope Lumber Company against Sterling 7. Stewart, in which defendant filed a counterclaim. Judgment for defendant on the counterclaim, and plaintiff appeals. Affirmed.

Allen Glenn & Son, of Harrisonville, and Frank Titus, of Kansas City, for appellant.

A. A. Whitsitt, of Harrisonville, for respondent.

TRIMBLE, P.

The record brought up by appellant consists of a transcript of the record proper and so much of the bill of exceptions as relates to certain motions which were filed, plaintiff's instructions given and refused, together with the motion for new trial, and the steps taken to appeal. None of the testimony in the case is preserved. Consequently, from the pleadings and the admissions in the respective briefs we gather that the controversy herein arises out of and involves the following facts:

Plaintiff, the George D. Hope Lumber Company, is a corporation, and, as its name indicates, was engaged in the business of buying and selling lumber and building materials, having its main office in Kansas City, Mo., and a branch lumber yard at Drexel, in Cass county, Mo. For some years prior and up to May 20, 1918, the defendant Stewart was an employee of the plaintiff, and in charge of said lumber yard at Drexel. On the above-named date he ceased to work for plaintiff, and thereafter, on the 23d day of July, 1919, plaintiff brought suit against him on a petition in three counts. The first was for $857.54, the alleged value of certain goods, wares, and merchandise charged to have been taken by defendant between April 10, 1916, and December 30, 1917, and appropriated to his own use, for which he had not paid. The second count was to recover $975, made up of the following sums, to wit, $480 for certain sacks of cement alleged to have been disposed of by defendant for his own use and benefit, about May 13, 1918, and for which he did not account, $125 for shingles similarly disposed of about May 26, 1918, and for which he failed to account, $20 for certain poles disposed of in the same way on the same date, and the sum of $360 alleged to have been taken and appropriated, at various times during the year 1919, by defendant from the funds of plaintiff upon, the false claim that same was for wages or salary due him. The third count was for $84.51, the value of goods, wares, and merchandise charged to have been sold and delivered to defendant during the years 1917 and 1918 for the use and benefit of a firm of which the defendant was a member and joint partner.

To this petition defendant in due time filed an answer on January 5, 1920, it being the January term of that year. The cause *as continued, and at the September term, on the 8th of November, 1920, plaintiff filed a motion for a separate trial on the first count of its petition. This motion was at the same term sustained, and the court set the case on the first count down for trial on December 6, 1920.

Plaintiff also at said September term, and on the 12th of November, 1920, filed a motion to make defendant's answer more definite and certain, which motion the court, on December 6, 1920, sustained, and defendant was given until February 14, 1921, to plead. (Manifestly, from the statements in the motion, and the further fact that immediately upon the sustention of the motion the parties went to trial on the first count, the matters desired to have made more definite and certain appertained to the answer to the other counts in the petition, and not to the first count.)

As just stated, the court on December 6, 1920, heard the case on the first count, and found that defendant was justly indebted to plaintiff on the first count in the sum of $563.91, as alleged in defendant's answer to said first count, and in the entry of such finding it is stated that, the defendant having prevailed on said first count, the costs of the bearing on the first count are adjudged against the plaintiff.

Pursuant to the leave given to defendant to plead, after the motion to make his answer more definite and certain was sustained, defendant, on February 14, 1921, in vacation, filed his amended answer. This pleading, however, is not shown in appellant's abstract, and at the time the case was argued and submitted in this court, to wit, March 10, 1922, the record contained no such answer, but on March 14, 1922, four days after the submission thereof, this omission was attempted to be cured by the filing of what is certified by the circuit clerk to be the original amended answer filed by defendant.

On February 22, 1921, as shown by the record proper, or on February 26, 1921, as shown by the term bill of exceptions, plaintiff filed a motion to strike out portions of defendant's amended answer. The matter first asked to be stricken out relates to a statement therein in answer to the first count of the petition, the reason for asking that it be stricken out being that—

"The said clause is improperly in such amended answer, the said first count in plaintiff's petition, and the matters pertaining thereto having heretofore been adjudicated in this court, and are no longer open to question by either the defendant or the plaintiff."

The other matter asked to be stricken out was contained in the answer to the second count of the petition. These matters thus asked to be stricken cut were not set out in full in the motion, but only designated by certain words at the beginning and end thereof. At the May term, May 2, 1921, the court overruled this motion. On May 25, 1921, of the same term, the defendant filed his second amended answer. In it defendant stated that he "denies each and every allegation in said petition contained, except such as are hereinafter specifically admitted to be true."

The said second amended answer then went on to state that

"The first count in plaintiff's petition, consisting of an itemized book account in which plaintiff asks $875.88, is not correct; but that the said itemized book account as alleged in the petition should properly show on its account the sum of $563.91 and no more; and that said account has been separately determined by the court and its finding has been announced as being $563.91 and no more."

The said answer then specifically denied that defendant owed plaintiff $480 as alleged in the second count, and denied that he took or appropriated or disposed of the sacks of cement therein charged to have been disposed of by him.: It also specifically denied that he received, removed, appropriated, or disposed of the shingles or any part thereof, mentioned in said second count, and also specifically denied that he took, received, or appropriated to his own use the poles mentioned therein.

As to the other item in said second count, the defendant denied that he took $360 of plaintiff's money upon an untrue claim as alleged, but set up that defendant "did issue a check for said sum in payment to himself while in the employ of plaintiff as manager of the Hope Lumber Yard at Drexel, Mo., the same being due him for a salary from January 1, 1918, to May 20, 1918, for the period of time covering four and two-thirds months, under an agreement and contract by and between the plaintiff and this defendant to begin January 1, 1918, by and through the said plaintiff, its manager and officers and directors, and in which this defendant was to receive as his salary $200 per month, beginning January 1, 1919, for one year, together with his traveling expenses, such as fares and hotel bills, and was to perform and did perform duties and services for said plaintiff as follows: To do the auditing and invoicing of plaintiff's several lumber yards in addition to the management of the Drexel Yard, all of which was duly carried out and performed on the part of the defendant from said 1st day of January, 1918, to May 20, 1918."

In answer to the third count defendant admitted that the account as stated therein was correct, except that certain credits should be entered thereon, to wit, $50 cash paid by defendant on account, $39.50, the reasonable value of a certain Gandy belt which the plaintiff took possession of and kept, leaving a balance due defendant on said third count of $6.49 for which he asked judgment.

The said second amended answer then denied each and every allegation in said third count.

For a set-off and counterclaim the defendant alleged:

"That on or about July 1, 1916, he was elected secretary of plaintiff corporation and continued in the management of the Drexel Yard belonging to plaintiff at a salary of $150 per month and the 5 per cent. commission on net earnings of the Drexel Yard which continued for one year, to July 1, 1917; that defendant was paid by plaintiff $100 per month and the 5 per cent. on net earnings of Drexel Yard, leaving a balance due defendant of $50 per month for 12 months, making the sum of $600 still due and owing defendant, and for which sum he asks judgment.

"Also defendant further alleges that plaintiff declared a dividend of 6 per cent. on their capital stock on January 1, 1919, for the previous year; that defendant then owned shares of capital stock to the amount of $6,000 and was entitled to receive of plaintiff the sum of $360, and that the same remains due and unpaid; that defendant was the owner of a half interest in a certain adding machine, plaintiff being the owner of the other half interest, called the Dalton make of machine; that at the time defendant ceased" to act as employee of plaintiff on May 20, 1918, said machine was reasonably worth the sum of $175. Although defendant demanded possession or a settlement the plaintiff took possession thereof and converted it to its own use to defendant's damage in the sum of $87.50, which sum plaintiff owes on said account of keeping said machine."

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