Industrial Loan Co. v. Grisham

• Decision Date: 05 April 1938
• Docket Number: No. 24379.,24379.
• Parties: INDUSTRIAL LOAN CO. OF CAPE GIRARDEAU v. GRISHAM.
• Court: Missouri Court of Appeals

115 S.W.2d 214

INDUSTRIAL LOAN CO. OF CAPE GIRARDEAU v. GRISHAM.

No. 24379.

St. Louis Court of Appeals. Missouri.

April 5, 1938.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

"Not to be published in State Reports."

Action by the Industrial Loan Company of Cape Girardeau, Missouri, a corporation, against V. Paul Grisham to recover the balance due on purchase price of a furnace stoker. Verdict for the plaintiff, and from an order granting defendant a new trial, plaintiff appeals.

Affirmed and remanded.

J. Grant Frye, of Cape Girardeau, for appellant.

Finch & Finch and L. Neal Ellis, all of Cape Girardeau, for respondent.

BECKER, Judge.

Plaintiff, as assignee of the Whitledge Electric Company, brought suit to recover $300 as the balance due from defendant on his purchase of a furnace stoker. Plaintiff prevailed. The court, however, granted defendant a new trial. Plaintiff in due course brings this appeal.

The petition alleges that the plaintiff is a corporation; that on August 23, 1935, defendant entered into a written contract with one W. P. Whitledge, doing business as the Whitledge Electric Company, by which said Whitledge sold to defendant one No. 30 De Luxe furnace stoker for the sum of $355; that a down payment of $55 was made, leaving an unpaid balance on such contract of $300; that by said written instrument defendant agreed to pay the said $300 on completion of the installation of said stoker; that said instrument contained the following paragraph: "It is understood and agreed that this instrument and the seller's interest therein may be offered by the seller for discount to Lafayette Industrial Loan & Investment Company, and to induce said corporation to accept such assignment, the purchaser hereby agrees and represents to said corporation that such assignment shall be free of any and all defenses which the purchaser may or might have against the seller"; that on the day following the execution of the said agreement for the purchase and sale of the stoker said Whitledge assigned the same to plaintiff; that Whitledge thereafter completed the installation of the said stoker, but defendant failed to pay the $300 balance, or any part thereof, and prays judgment for the amount of the balance with interest, plus attorney's fees, which are provided for under the terms of the instrument.

Defendant's answer was a general denial coupled with a plea that at the time defendant signed the instrument sued on the words "Lafayette" and "& Investment" had not been stricken out, and that such changes were made after defendant had signed the instrument. The answer further alleged that there was an implied warranty that the stoker would operate efficiently and perform the work for which it was intended, but that it wholly failed to so perform, and that there was a total failure of consideration, and that defendant took the stoker out and tendered it back to plaintiff. The answer further sets up that the provision authorizing the assignment of the instrument free of all defenses was void as against public policy, and that plaintiff in fact took the instrument subject to all the defenses defendant had against Whitledge.

Plaintiff's reply denied the new matter of defendant's answer and alleges that defendant took the instrument as an innocent purchaser for value before maturity.

At the trial plaintiff adduced but one witness, the manager of plaintiff's company, who testified that prior to August 30, 1935, Whitledge came to his office and stated that he had the prospect of a sale of a furnace stoker to Dr. Grisham, and asked if "I could handle the paper to pay for the stoker. I told him to bring down the form of contract for consideration"; that Whitledge brought him the form of the contract, which he looked over and approved, and in the clause providing for assignment of the contract he scratched out on the form the words "Lafayette" and "& Investment," making it read "Industrial Loan Company"; that at the time Whitledge brought the form to the witness for his consideration, the blank spaces therein had not been filled out. Witness further testified that Whitledge brought the instrument sued on back to him, bearing defendant's signature, and the blank spaces filled out, and that he discounted the paper on August 30, 1935, and that there is a balance due thereon of $300. Then plaintiff introduced in evidence the instrument sued upon and rested.

The defendant, Dr. Grisham, himself testified that he signed the order blank with no words stricken therein. He further testified that the stoker would not operate properly; that it smoked up the house and would not heat it; that Whitledge Electric Company sent men on several occasions to put it in proper working order but that the stoker never did heat up the house. "It was so cold" that they had to move out of the house until they had the stoker removed and returned to Whitledge.

Defendant adduced several other witnesses who testified that they had been in the house and that the stoker failed to heat the house, and smoked badly.

The court in submitting the case to the jury gave an instruction numbered 1 at the request of plaintiff, which directed the jury to disregard all the testimony relating to the condition and performance of the stoker and as to whether or not it heated defendant's home, and directed them "to confine their attention solely to the issue as to whether or not this instrument sued on has since execution by Dr. Grisham been changed or altered."

The court in sustaining defendant's motion for new trial stated that it did so on the ground "that the court erred in not sustaining the demurrer offered by defendant at the close of plaintiff's case, for the reason that the record fails to show that there was a specific promise made...