Hilderbrand v. Anderson

• Decision Date: 08 July 1954
• Docket Number: No. 7194,7194
• Citation: 270 S.W.2d 406
• Parties: HILDERBRAND v. ANDERSON.
• Court: Missouri Court of Appeals

Page 406

270 S.W.2d 406

HILDERBRAND v. ANDERSON.

No. 7194.

Springfield Court of Appeals, Missouri.

July 8, 1954.

J. Grant Frye, Cape Girardeau, for appellant.

Strom & Spradling, Cape Girardeau, for respondent.

STONE, Justice.

Upon trial of this cause, the jury returned verdicts against plaintiff on his petition, against defendant on his counterclaim, and for plaintiff in the sum of $96.90 on his 'reply claim'. Thereafter, plaintiff's motion for new trial on his petition and defendant's motion for new trial on his counterclaim were overruled, defendant's motion to set aside the verdict and judgment for $96.90 on plaintiff's 'reply claim' and to enter judgment thereon in favor of defendant (under Section 510.380) was sustained without specification of the ground or grounds for such action, and defendant's alternative motion for new trial on plaintiff's 'reply claim' was overruled. (All statutory references herein are to RSMo 1949, V.A.M.S.) The case is before us on plaintiff's appeal from the adverse judgment thus entered against him on his petition and his 'reply claim'.

In substance, plaintiff's petition charged that, on June 24, 1951, plaintiff owned a 1949 Plymouth sedan; that 'defendant promised and agreed to take such automobile to Oliver Geil Motor Sales, Inc., * * * in Jerseyville Illinois and trade it to such motor company as a down payment of not less than $1200.00 on the purchase price of a new 1951 Plymouth sedan'; that plaintiff assigned in blank the Missouri certificate of title to the 1949 Plymouth automobile, 'it being agreed that defendant would * * * insert the name of Oliver Geil Motor Sales therein if the defendant was able to make such a trade'; that on June 25, 1951, 'defendant caused such blank 'Assignment of Title' to be filled out so as to make defendant the assignee'; and that thereafter, upon defendant's application, a Missouri certificate of title was issued showing ownership of the automobile in him.

Plaintiff's petition further alleged that, on June 25, 1951, defendant traded the 1949 Plymouth automobile to Oliver Geil Motor Sales 'as a down payment figure of $1111.48' on a new 1951 Plymouth automobile, for which an Illinois certificate of title subsequently was issued to defendant; that the unpaid balance of the purchase price of the 1951 Plymouth automobile was $972.75 (which, as the evidence showed, was 'financed' by note and chattel mortgage executed by defendant); that defendant brought the 1951 Plymouth automobile to Lutesville, Missouri (where both plaintiff and defendant resided), 'refused to allow plaintiff to have the same, and after about three weeks, disclosed to plaintiff that the title thereto was in defendant's name'; and that, on July 30, 1951, defendant 'reassigned and transferred' the 1951 Plymouth automobile to Oliver Geil Motor Sales 'and received, over and above the balance due the finance company * * * $792.10, which sum he kept and retained'. Plaintiff's petition then concluded as follows:

'13. The acts and conduct of defendant were all pursuant to a scheme to cheat and defraud plaintiff of his 1949 Plymouth automobile, * * * and all the foregoing representations that defendant made * * * were false and pursuant to such scheme to cheat and defraud plaintiff.

'14. On account of the wrongful acts and conduct of defendant, plaintiff has suffered actual damages of $1200.00.

'Wherefore, plaintiff prays judgment against defendant for $1200.00 actual damages and for $1000.00 punitive damages.'

In his amended answer, defendant averred that he had purchased the 1949 Plymouth automobile from plaintiff for $1000.00 which had been paid in full prior to assignment of the title by plaintiff on June 24, 1951, pleaded estoppel and ratification as affirmative defenses, and attacked the legal sufficiency of plaintiff's petition 'to state a claim for fraud and deceit'.

At the outset of the trial, defendant's counsel moved to dismiss plaintiff's petition 'as not stating a cause of action in fraud and deceit'. This motion was overruled and the trial proceeded without any comment by plaintiff's counsel as to the nature of his alleged cause of action. After the close of the evidence, plaintiff's counsel told the court that 'the plaintiff believes it has offered sufficient evidence to warrant going to the jury on the ground of fraud or on the ground of breach of contract, but the plaintiff desires to treat as surplusage that part of the petition which might be construed as permitting the fraud theory or the contract theory, and desires to go to the jury on the petition solely on the matter of what might be called 'money had and received' and will treat all other allegations of the petition as surplusage, and for that reason plaintiff objects to the instructions which the court has indicated it was going to give for the defendant as not being responsive to the issues which are not (sic) laid on the petition and which are contradictory to the instructions of plaintiff on the petition * * *.' Defendant's counsel immediately objected that 'the introduction of plaintiff's instruction on the theory mentioned is a departure and comes as a surprise to the defendant, both as to the introduction of evidence and the production of witnesses and is contrary to the allegations of his petition.' The court thereafter gave plaintiff's verdict-directing Instruction No. 1 submitting the case on plaintiff's petition on the theory of money had and received, and at the same time gave defendant's Instructions 3, 4 and 5 on the theory of fraud and deceit.

Since plaintiff's only complaints (upon appeal from the adverse judgment on his petition) are that defendant's Instructions 3, 4 and 5 submitted the 'abandoned issues' of fraud and deceit and conflicted with his Instruction 1, the decisive question is as to whether his action was for money had and received (in which event an instruction submitting his case on that theory was proper and error was committed in giving conflicting instructions on the theory of fraud and deceit ¹), or was for fraud and deceit (in which event plaintiff's Instruction 1 on the theory of money had and received should not have been given and plaintiff cannot complain because of conflict between that instruction and defendant's Instructions 3, 4 and 5 given on the correct theory of fraud and deceit ²).

As urged upon us by plaintiff, we recognize that the action for money had and received has always been favored in the law; that the tendency is to widen its scope; that it is a flexible form of action, levying tribute on equitable, as well as strictly legal, doctrines; and, that the action lies where the defendant has received or obtained possession of money or its equivalent belonging to another which in equity and good conscience, ex aequo et bono, he ought not to retain ³. However, the question for determination is not whether plaintiff might have brought an action for money had and received, but whether he did, in fact, sue on that theory.

Under our Civil Code, 'the pleadings continue to be of the greatest utility in defining the issues of a case. And it is not to be understood that the petition in stating plaintiff's claim has lost its usefulness as a means of arriving at the primary objectives of the Code. On the contrary, * * * the petition is to be of the same usefulness as before, or of more usefulness than before, in plainly stating the facts upon which the plaintiff relies as showing that he is entitled to recover.' Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 28. See also Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229, 230(2); Holland v. City of St. Louis, Mo., 262 S.W.2d 1, 3. We are enjoined that 'all pleadings shall be so construed as to do substantial justice' (Section 509.250; DeVault v. Truman, 354 Mo. 1193, 194 S.W.2d 29, 32); and, even as formerly the parties were 'to be protected by the court when it construes pleadings to secure them against being misled' [Quigley v. King, 182 Mo.App. 196, 168 S.W. 285, 289(4)], under the present Civil Code pleadings are not to be used to conceal issues and to ambush the adverse party [Gerber v. Schutte Inv. Co., supra, 194 S.W.2d loc. cit. 28(3); Krummenacher v. Western Auto Supply Co., 358 Mo. 757, 217 S.W.2d 473, 475(2)]. '* * * (P)laintiff should never be permitted to turn the generality of the count (for money had and received) into a surprise upon the defendant by deserting the ground which the defendant is let to believe is the only matter to be tried, and resorting to another of which he cannot be apprised by the declaration and may have no suspicion'. 4 Am.Jur., Assumpsit, Sec. 20, p. 511. It is still true, as it always has been ⁴ in our practice, that 'plaintiff may not sue upon one cause of action and recover upon another, or recover upon an inconsistent theory without notice to the opposing party.' Kemp v. Woods, 363 Mo. 427, 251 S.W.2d 684, 688(6).

Where, as in the instant case, 'it becomes necessary to determine the nature of the cause, that determination is based upon construction of the complaint.' Williams v. Illinois Cent. R. Co., 360 Mo. 501, 229 S.W.2d 1, 2(3), 20 A.L.R.2d 322. 'The form of the action is determined by the substance of the petition.' Webster v. Sterling Finance Co., 351 Mo. 754, 173 S.W.2d 928, 931. See also White v. Scarritt, 341 Mo. 1004, 111 S.W.2d 18, 21(4); 1 C.J.S., Actions, Sec. 46, page 1100. We are not unmindful of the fact that, as plaintiff points out, it is proper, in an action for money had and received, to set forth the facts creating liability, and that in some instances averments as to fraud and deceit or commission of a tort have been treated as harmless surplusage [Tabor v. Universal Exploration Co., 8 Cir., 48 F.2d 1047, 1052(4); Sidebottom v. Sidebottom, 215 Mo.App. 513, 255 S.W. 353, 356(2)], particularly where the case was tried and submitted by both parties on the theory of money had and received [Vaught v. Hez Brown Mortgage Co.,...