Glass v. Heller

• Decision Date: 12 July 1926
• Docket Number: No. 19465.,19465.
• Citation: 287 S.W. 871
• Parties: GLASS v. HELLER.
• Court: Missouri Court of Appeals

287 S.W. 871

GLASS v. HELLER.

No. 19465.

St. Louis Court of Appeals. Missouri.

July 12, 1926.

Appeal from St. Louis Circuit Court; A. B. Frey, Judge.

"Not to be officially published."

Action by Morris Glass against Emanuel B. Heller. From a judgment for plaintiff for nominal damages, plaintiff appeals. Reversed and remanded, with directions.

Foristel, Mudd, Hezel & Habenicht, of St. Louis, for appellant.

Levinson & Levinson, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for the alleged breach by defendant of a contract entered into between him and plaintiff, by the terms of which defendant had agreed and obligated himself to guarantee to plaintiff the execution by one Harry Goold of a certain promissory note in the sum of $7,700, and to purchase said note for the full value thereof from plaintiff upon his request. The case was tried before the court without the aid of a jury, and a finding and judgment were rendered for plaintiff for nominal damages in the sum of $1. After an unavailing motion for a new trial, plaintiff has appealed.

Inasmuch as the issues on appeal are confined largely to the extent of plaintiff's damages, an extended reference to the contents of petition, which is lengthy, is unnecessary.

In the answer, after denying generally each and every allegation in the petition, defendant alleged want of consideration for the contract sued on, and, for further defense, pleaded that the note for $7,700 had been paid by the said Harry Goold prior to the institution of this action.

The reply was conventional.

The evidence disclosed that on December 7, 1918, a written agreement was entered into between plaintiff and Goold, both of Collinsville, Ill., which agreement recited that plaintiff had conveyed to Goold a stock of jewelry, but that the title to said property should remain vested in plaintiff until the sum of $12,564.59 had been paid him by Goold; that Gould should have full right and authority to sell and dispose of said property at retail; that he should pay plaintiff the amount of his indebtedness on or before 18 months from the date of the execution of the contract, and, in the event said amount was not paid on or before said time, the balance remaining due and unpaid should bear interest at the rate of 6 per cent., and if said balance was not paid within 24 months from the date of the execution of the contract, Goold should lose all right, title, and interest in and to said property, and plaintiff should have full right, power, and authority to enter in and upon the premises and take possession thereof; that when the entire purchase price had been paid plaintiff by Goold and all the terms and conditions of the contract had been fulfilled, plaintiff should deliver to Goold a bill of sale to the stock of jewelry; and that upon the violation by Goold of any of the terms and conditions of the contract, plaintiff should have full right, power, and authority to enter in and upon the premises and take possession of the stock of goods.

At the time of the execution of this contract, Goold, who was engaged in Collinsville, Ill., in the operation of a store owned by defendant and a certain Livingston, moved the stock of goods mentioned in the contract to this store, to be sold at retail. Shortly thereafter, plaintiff had controversies with Goold concerning the amount of time he was devoting to the business under the contract, the payment of the expenses of the business, the purchase of merchandise, and the removal of a portion of the stock of goods without plaintiff's consent. Thereupon plaintiff employed counsel with a view to re-entering under the terms of the contract, Goold also employed attorneys. While this controversy was in progress, defendant appeared on the scene, and, after certain negotiations, a contract was entered into between him and plaintiff on March 29, 1919, which, after reference to the prior contract between plaintiff and Goold, contained the following paragraph:

"Now, therefore, in consideration of the mutual agreements hereinafter contained and other good and valuable considerations, receipt of which is hereby acknowledged, the party of the first part guarantees the execution of a note by Harry Goold, in favor of Morris Glass, for any and all balances due and unpaid at the expiration of 18 months after the date of execution of the contract hereinbefore referred to, such note to be for a period of 6 months and bearing interest at the rate of 6 per cent. per annum, and the said party of the first part further agrees to purchase the note next above referred to from said party of the second part at par and without discount, any time after the execution of said note, and upon the request of said party of the second part."

After the execution of this contract, plaintiff instructed his attorneys to stop further proceedings against Goold, and no further demands were made by plaintiff on Goold as to how he should proceed with the business.

On June 12, 1920, at the expiration of the period of 18 months stipulated in the original contract between plaintiff and Goold, the parties to such contract met and attempted to settle the balance due under the terms thereof. As a result, a promissory note in the sum of $7,700, bearing 6 per cent, interest, and due in 6 months after date, was executed by Goold in favor of plaintiff, and was received by plaintiff as a partial and conditional payment on the amount due under the terms of the original contract.

On June 15, 1920, plaintiff received from defendant a letter in which he was advised that, owing to the fact that there was no consideration paid to defendant to enter into the contract of March 29, 1919, and for the further reason that plaintiff had not lived up to the terms of said agreement, defendant was withdrawing therefrom. Upon receipt of this letter, plaintiff went to defendant and requested him to take up the note, defendant, however, refusing so to do. Plaintiff thereupon returned to Collinsville and found that Goold had disappeared and that hie whereabouts was unknown. Plaintiff reported these facts to his attorneys, and, upon their advice and through them, a replevin suit was instituted, and the stock of goods in the possession of Goold seized by the sheriff. It appears that the value of such stock was approximately $10,000. After the stock was replevied, Goold returned. The replevin suit was dismissed by plaintiff on June 21, 1920, for the reason that, in the opinion of his attorneys, it would not lie because he was not entitled to the immediate possession of the goods. At the time of the dismissal of the suit, it was stipulated between plaintiff and Goold that Goold was indebted to plaintiff in the sum of $7,700, with interest at 6 per cent., under the terms of the original contract, and that Goold should pay said sum by five payments of $500 each, and one payment of $5,200, which payments were evidenced by judgment notes given plaintiff by Goold. Two of the $500 notes were subsequently paid. Thereafter Goold went into bankruptcy, and a settlement was made with his creditors upon a basis of 33 1/3 per cent., the amount which plaintiff received to be applied on the outstanding indebtedness in such settlement, being the sum of $2,556.66.

When the replevin suit was dismissed, the note for $7,700 was delivered to Goold by plaintiff's attorney and was produced at the trial by defendant.

While there was no finding of facts made by the learned trial...