Hardy v. Lewis Automobile Co.

• Decision Date: 19 July 1927
• Docket Number: No. 19784.,19784.
• Citation: 297 S.W. 169
• Court: Missouri Court of Appeals
• Parties: HARDY v. LEWIS AUTOMOBILE CO.

297 S.W. 169

HARDY v. LEWIS AUTOMOBILE CO.

No. 19784.

St. Louis Court of Appeals, Missouri.

July 19, 1927.

Rehearing Denied July 26, 1927.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by E. F. Hardy against the Lewis Automobile Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions on condition of remittitur.

Geo. O. Durham and Edwin A. Smith, both of St. Louis, for appellant.

J. M. Feigenbaum and J. R. Oxenhandler, both of St. Louis, for respondent.

NIPPER, J.

Plaintiff is a grocery salesman, and defendant is a corporation engaged in the sale and repair of automobiles and automobile parts. It appears that plaintiff became indebted to defendant in the sum of $23.07. Defendant sued plaintiff in a justice court and obtained judgment for this sum, and court costs which amounted to $9.90.

On the 10th of November, 1924, or about four days after the judgment was obtained, plaintiff forwarded his check, for the sum of $23.07 in payment of the judgment, to defendant's counsel, and advised such counsel that he would mail them a check for $9.90 if they would explain the cost bill to him. From plaintiff's evidence, it appears that defendant's counsel advised him that in order to secure an itemized statement of these costs he would have to pay a fee therefor. Plaintiff also wrote to defendant a letter concerning the same matter. This letter defendant turned over to its attorneys for reply. The attorneys advised plaintiff that he would have to send his check for this cost. On December 26, 1924, he issued his check for $9.90, payable to defendant's attorneys, and mailed this on the night of the 26th or the morning of the 27th. Defendant's attorneys contend that the check was not received by them until the 2d of January, 1925.

It appears, from the evidence in this case, that on January 3, 1925, defendant's attorneys wrote the justice of the peace a letter requesting that a garnishment be issued against the employer of plaintiff and against his bank account, and asked that the garnishment be made returnable January 15. Garnishments were issued and service was had on the bank on the 7th of January, and on plaintiff's employer on January 8, following. This garnishment tied up $500 of plaintiff's salary in the hands of his employer, and $980 in his bank. Before plaintiff was aware of these garnishments, he had issued a number of checks against his bank account. These 'checks were returned by the bank marked, "Account garnished." When plaintiff discovered that his bank account and wages had been held up through this legal action, he had his brother communicate with defendant immediately and call its attention to this matter. Subsequently, the plaintiff himself called defendant's counsel and was advised by one of the counsel in the office that the garnishment would be lifted if plaintiff would make some further payments. Thereupon plaintiff wrote directly to defendants calling their attention to these garnishments and the trouble it was causing him. This letter was by defendants turned over to their counsel or attorneys, but the garnishments were not lifted until the 15th of January, or the day set for trial.

In his petition, plaintiff alleges that on or about the 15th of September, 1924, defendant filed suit in the justice court against him for the sum of $23.07, and obtained judgment against him for that amount, together with court costs, all of which was paid to defendant during the month of December, 1924, and on or about January 5, 1925, defendant, although having received full payment of the sum; caused execution to be issued against him without advising the court or officers thereof that said judgment had been paid; that defendant further caused garnishment to be issued against plaintiff on the last-named date, garnishing plaintiff's wages in the hands of his employer, and further caused attachment to be issued against the bank account of plaintiff, and that defendant continued to prosecute said garnishment and attachment until the same was heard by the justice of the peace on January 15, 1925, when the same were dismissed by the justice. Plaintiff further states that, at the time of the issuance of the execution, garnishment, and attachment against plaintiff, defendant and its attorneys knew that this judgment and court costs had been paid by plaintiff to defendant through its counsel, but that defendant maliciously and without probable cause and for...