Goar v. Belinder

• Decision Date: 02 April 1923
• Docket Number: No. 14625.,14625.
• Citation: 249 S.W. 977,213 Mo. App. 330
• Parties: GOAR et el. v. BELINDER.
• Court: Missouri Court of Appeals

249 S.W. 977

213 Mo. App. 330

GOAR et el. v. BELINDER.

No. 14625.

Munn City Court of Appeals. Missouri.

April 2, 1923.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Emma M. Goar and another, against A. G. Belinder. From the judgment rendered, defendant appeals. Affirmed., with directions to correct judgment entry.

William C. Forsee and G. W. Duvall, both of Kansas City, for appellant.

Sharp & Sharp and Ed. E. Aleshire, all of Kansas City, for respondents.

TRIMBLE, P. J.

Defendant wan operating a hotel in a building which he owned. On February 28, 1920, plaintiff purchased the furniture and hotel business at an agreed price of $3,500 (of which $1,000 was paid in cash), and also put into the hotel $431.65 wort of additional furniture, expended various sums for improvements, paid defendant $63 for groceries then on hand, and deposited $25 as security for electric lights. They then gave a chattel mortgage on the whole to secure the remaining $2,500 ad the purchase price, to be paid in installments of $50 per month, the first installment falling due March 25, 1920. (From the manner in which defendant proceeded, we assume that a default in the payment of any installment must have made the whole debt due, and authorized a foreclosure of the mortgage, though the record does not affirmatively no show.) They then took a 10-year lease on the building at a rental of $150 per month, paying the first month's rent in cash.

Plaintiff took charge of, and hews running, the hotel, but, the business being nothing like defendant had represented it to be, they found on ox about March 22d that they would have to raise additional money to carry on the business and meet their first installment, due on March 25th. Consequently they left the hotel in charge of Mrs. Goar's mother and one Ferguson, a young man who boarded there, the latter to actively manage the hotel for them while they went to Oklahoma in the hope of getting additional money from the same source Mrs. Goer had theretofore raised the $1,000.

During their absence and on the same day they left, defendant came to the hotel, and on the 23d or 24th of March he was there and later told Ferguson he had a chattel mortgage on the hotel which would fall due on the 25th, and he was going to take charge of the hotel if the plaintiffs did not have the money due on the installment, and they would have to pay for the pace before they got it back. Ferguson says that early on the morning of March 25th, defendant took charge of the hotel, began waiting on the table and buying groceries therefor, and told Ferguson that all the money the latter had taken in was coming to him, and Ferguson paid to him all that be took in, less what he had paid out for expenses.

In a day or so after March 26, 1920, plaintiffs returned to Kansas City, having been unsuccessful in their quest for money and found that defendant had sold the hotel and that it was in the purchaser's, Bicknell's, hands. Not being able to get in touch with defendant, although several attempts were made to do so, they brought this suit in two counts, the first for $1,869.65, the aggregate of their damages, on the ground of defendant's fraud and deceit in the sale of the hotel business to plaintiffs, and the second to recover $431.65, the value of the additional furniture they had put into the building. Said second count for conversion being on the ground that defendant, prematurely and before he had any right so to do, had wrongfully seized the property, and thereafter foreclosed the chattel mortgage, and had thereby converted the property to his own use.

In his answer, defendant met each count with a general denial, and then set up, as a counterclaim, his demand for $277.50 as the balance due on the $2,500 note, after proceeds of the foreclosure of the chattel mortgage had been applied thereon. Plaintiffs' reply thereto was a general denial.

At the March term, 1922, the case was tried, and the jury found for "plaintiff," and assessed "their damages" at $1,438 en the first count, and then found for defendant on the second count. On this verdict the court rendered judgment for plaintiffs, on their first count, in the sum of $1,438, and for defendant on the second count.

At the next or May term, 1922, the record recited that "plaintiff confesses judgment in favor of defendant on defendant's counterclaim" for $277.52, whereupon the court set aside the former judgment rendered at the March term and entered judgment for defendant on his counterclaim for $277.52, and then rendered judgment for plaintiff on the first count for $1,438 less $277.50, namely $1,160.50.

The defendant thereupon appealed. Plaintiffs, in addition to their brief on the merits, have filed a motion to dismiss the appeal or affirm the judgment. Certain grounds of this motion are untenable, namely, that the record proper does not show any appeal wee nor that any bin of exceptions was signed, filed or made a part of the record. We think that the record proper does disclose each and every one of these things.

The ground that the record proper does not show the time when the Motion for a new trial was tiled nor that one was ever filed calls for a somewhat extended notice. We may remark here that, if the parties in this case had deliberately set out with the intention of tangling up and hopelessly confusing the record and of presenting it to us in such a shape that a satisfactory conclusion can with difficulty he reacted, they would not have Succeeded any better than they have. Although the $431.65 alleged loss on account of furniture added to the hotel is included in the damages sued for in the first count, nevertheless a second count was added seeking to recover the same loss as for conversion. There are two plaintiffs in the case, yet the jury's verdict is for plaintiff, assessing their damages at the amount heretofore stated. The judgment thereon is go: plaintiff's, while at the next term it seems that plaintiff comes in and confesses judgment on the defendant's counterclaim, which the jury's verdict had not mentioned, and thereupon the former judgment was set aside, judgment was rendered against "the plaintiff" on defendant's counterclaim for $277.50, and then judgment was entered for "the plaintiff" and against the defendant for $1,438 less $277.50, to wit, $1,160.50. In addition to all this, the abstract of the record does not show that any motion for new trial or in arrest was filed as to the first judgment, nor does it affirmatively state the filing of any motion for new trial or in arrest. It is tree that, immediately following, and apparently as a part of the entry embodying the second judgment, the record reads:

"Thereafter on the same day defendant's melon for a new trial is by the court taken up, heard and fully considered, and the same is by the court overruled," etc.

The short form transcript certified to by the clerk showing both judgments show matters to be in the same situation as hereinabove stated. Neither" the abstract of the record proper nor the short form transcript makes reference to more than one motion for new trial, nor do they mention but one motion in arrest.

What motion for new trial is meant or referred to in the record which says "thereafter on the same day" the defendant's motion for new trial is overruled? If it refers to a motion to set aside the second judgment, necessarily it must have been filed or the court would not have acted upon it; and, since that action was had on the day the judgment was rendered, necessarily it was filed within the required statutory period. But it may refer to a motion directed against the first judgment. If so, then there is nothing in the record proper affirmatively stating that it was filed at the former term and within the statutory four days after judgment. It is well settled that the record should show this. Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638. It would seem, however, that plaintiffs' action in coming into court at the next term, confessing judgment on defendant's counterclaim, having the court to render judgment thereon, to set aside the former judgment for plaintiffs, and then to render judgment for plaintiffs for the amount of the former judgment less the amount of the judgment on the counterclaim, is necessarily an implied admission that there was a motion for new trial filed in proper time after the first judgment, else there was nothing to carry said first judgment over to the next term, where it could be acted upon as the plaintiffs had the court to do. It would seem that what the court did at the ay term was an attempt to correct, as far as it could, the first judgment, so as to meet objections raised in the motion for new trial filed against it, and the court, having done what it could in that regard, overruled the said motion. This would leave the defendant without...