International Harvester Co. v. McLaughlin

• Decision Date: 05 July 1932
• Docket Number: No. 17501.,17501.
• Citation: 52 S.W.2d 227
• Court: Missouri Court of Appeals
• Parties: INTERNATIONAL HARVESTER CO., APPELLANT, v. VICTOR McLAUGHLIN, RESPONDENT.

52 S.W.2d 227

INTERNATIONAL HARVESTER CO., APPELLANT, v. VICTOR McLAUGHLIN, RESPONDENT.

No. 17501.

Kansas City Court of Appeals. Missouri.

July 5, 1932.

Appeal from the Circuit Court of Cole County. — Hon. W.S. Stilwell, Judge.

AFFIRMED.

Clark, Boggs, Cave & Peterson, and Harry T. Limerick, Jr., for appellant.

Irwin & Bushman and Baker & Baker for respondent.

BLAND, J.

This is a suit in four counts, each covering a promissory note in the sum of $272.50, executed by defendant on January 23, 1929, in favor of F.M. Hafner or order. The notes were payable on or before the first day of August, 1929, the first day of October, 1929, the first day of April, 1930 and the first day of October, 1930.

The petition alleges that before maturity plaintiff purchased said notes for value, and in due course, and is now their owner and holder. The notes were given to cover a part of the purchase price of a tractor sold by Hafner to defendant under a warranty. The answer pleads that the warranty was breached; that the consideration for the sale of the tractor failed; that although the name of Hafner was written in the notes as payee, they were, in fact, executed and delivered to Hafner as the agent of the plaintiff and that, therefore, plaintiff was not the purchaser for value in due course.

At the conclusion of all of the testimony plaintiff offered a peremptory instruction, which the court refused to give. Whereupon, plaintiff, by leave of court, took a nonsuit but moved to set the same aside. On the same day plaintiff filed a motion to set aside the nonsuit, which motion the court overruled. Plaintiff has appealed.

Defendant raises the point that plaintiff is not entitled to prosecute this appeal for the reason that the nonsuit was voluntary. Plaintiff contends to the contrary. We think that defendant's contention must be sustained. It is well established in this State that a plaintiff may not take a voluntary nonsuit and appeal but, in order that there be an appeal, the nonsuit must be involuntary, and that it is not involuntary so long as the rulings of the court leave plaintiff a substantial cause of action. In order for the nonsuit to be involuntary the adverse rulings of the court must be on some question precluding plaintiff's right of recovery. [Roeder v. Shryock, 61 Mo. App. 485, 487; Gentry Co. v. Black, 32 Mo. 543; Chiles v. Wallace, 83 Mo. 84; Chouteau v. Rowse, 90 Mo. 191; Thompson & Sowers v. Allsman, 7 Mo. 531; Dowd v. Winters, 20 Mo. 361; Leimer v. Pac. R.R., 26 Mo. 26; Wonderly v. Haynes, 159 Mo. App. 122; Koger v. Hays, Admr., 57 Mo. 329; State ex rel. v. Iron Co., 83 Mo. 138; Loring v. Cook, 60 Mo. 564; Layton v. Riney, 33 Mo. 87; Overall v. Ellis, 32 Mo. 322, 328; Williams v. Finks, 156 Mo. 597.] Corpus Juris similarly states the rule. [18 C.J., pp. 1147, 1149.]

In the case of Hageman v. Moreland, 33 Mo. 86, the plaintiff took a nonsuit when the court overruled plaintiff's motion to strike out defendant's answer, the court said, l.c. 87:

"In the present posture of the case, we can give no opinion upon the merits. The plaintiff was under no necessity to take a nonsuit. The court has made no decision, which necessarily precludes him from a recovery, for if it be admitted that the answer which the court refused to strike out presented a complete bar to the action, yet it by no means follows that the defendant could or would have sustained the same by proof on the trial of the cause. If he had not, the answer could have done the plaintiff no harm.

"It is only where the action of the court, on the trial, is such as to preclude the plaintiff from a recovery that it is proper to suffer a nonsuit. In no other case will this court interfere, as has been decided again and again."

In the case of Layton v. Riney, supra, l.c. 88, 89, the court said:

"The plaintiffs were under no necessity to take a nonsuit, for the court had made no decision which necessarily precluded them from a recovery. It is only where the ruling of the court is such as strikes at the root of the case and precludes the plaintiff from a recovery that we will undertake to review the action of the court below after a voluntary nonsuit. A contrary practice would encourage parties to appeal upon every trivial decision of the court and thus keep the matter in controversy in endless litigation."

There was nothing in the action of the court in the case at bar in refusing plaintiff's directed verdict that precluded plaintiff's right of recovery. Plaintiff could have proceeded with the cause, submitted no other instructions than its peremptory one, or it could have offered instructions on the merits upon its theory of the case. Of course, the verdict would not necessarily have been adverse to plaintiff. The refusal of the peremptory instruction did not stop the trial so far as plaintiff was concerned. It could have proceeded.

The case upon which plaintiff seems to lay the greatest stress is that of Scott v. American Zinc, Lead & Smelting Co., 187 Mo. App. 344. In that case the court said, l.c. 358:

"We can conceive of no ruling that would be more preclusive of a plaintiff's recovery than for the court to refuse to submit the issues to the jury on instructions which correctly state the law of the case with respect to the facts in evidence. The refusal of all of plaintiff's instructions in the case under consideration was tantamount to the giving of a peremptory instruction against him, provided his instruction correctly declared the law of the case with respect to the evidence adduced."

However, the court later determined that plaintiff's...