John Deere Plow Co. v. Gooch

• Decision Date: 03 March 1936
• Parties: THE JOHN DEERE PLOW CO., APPELLANT, v. HARRY GOOCH AND JOHN KURZ, RESPONDENTS
• Court: Missouri Court of Appeals

91 S.W.2d 149

230 Mo.App. 150

THE JOHN DEERE PLOW CO., APPELLANT, v. HARRY GOOCH AND JOHN KURZ, RESPONDENTS

Court of Appeals of Missouri, St. Louis

March 3, 1936

Appeal from Circuit Court of Pike County.--Hon. Edgar B. Woolfolk Judge.

AFFIRMED.

Judgment affirmed.

May & May for appellant.

The trial court assigned the following reasons for granting defendants a new trial: 1st, That "the verdict is against the law of the case," and 2nd, "Against the evidence in the case" and 3rd, "On account of prejudicial error in giving plaintiff's instruction No 1," and 4th, "Because the verdict of the jury is not responsive to the instructions of the court." All other grounds in the motions for a new trial are in effect overruled, and the burden is upon the appellant to show error in the ruling upon the grounds assigned by the court on which the new trial was granted. Yuronis v. Wells (Mo Sup.), 17 S.W.2d 519; Porter v. C. B. & Q. R. Co. (Mo. Sup.), 28 S.W.2d, l. c. 1040; Sakawski v. Baird (Mo. Sup.), 69 S.W.2d l. c. 651; Thiole v. Ry Co., 140 Mo. 319; Connally v. Pehle, 105 Mo.App. 407; Ittner v. Hughes, 133 Mo. 679. "Appellate court cannot sustain new trial on ground not assigned by trial court, unless party in whose favor new trial is granted excepted to adverse ruling of trial court." Sawoski v. R. R., 69 S.W.2d 652. First ground: "That the verdict is against the law of the case." Loftus v. Met. St. Ry. Co., 220 Mo. 471. Second ground: "That the verdict is against the evidence in the case." Becker v. Thompson (Mo. Sup.), 76 S.W.2d 357. And even had the trial court sustained the motion for new trial on the ground that the verdict was against the weight of the evidence, the court would have erred in granting a new trial, because under the evidence no verdict in favor of the defendant could have been allowed to stand. State ex rel. v. Ellison, 268 Mo. 232; Sutter v Metropolitan St. Ry. Co. (Mo. Sup.), 188 S.W. 65; Skirvin v. McKamey (Mo. App.), 237 S.W. 858. Appellant contends that the verdict of the jury was for the right party, and should not have been disturbed by the trial court. Homuth v. St. Ry. Co., 129 Mo. l. c. 643. "Appellant relies on the well-established exception to the general rule upholding trial courts in granting new trials as being against the weight of the evidence, that such new trials can be granted on that ground only when the evidence is conflicting and there is substantial evidence both ways to be weighed against each other, or putting it another way no new trial can be granted because the verdict is against the evidence when the facts are undisputed, for then only a question of law is involved" (italics ours). Walsh v. Southwestern Bell Telephone Co. (Mo. Sup.), 52 S.W.2d 845; Loftus v. Met. St. Ry. Co., 220 Mo. l. c. 481. "Where on the undisputed facts in the case no verdict for the party asking for a new trial could ever be allowed to stand, the appellate court will interfere with the granting of a new trial." Lead & Zine Mining Co. v. Webster, 193 Mo. 351. "While in jury cases judge has broad powers in granting new trials, discretion must not be exercised arbitrarily or unreasonably, and appellate courts must correct abuse of discretion in improperly granting a new trial." Herbert v. Hawley (St. L. App.), 32 S.W.2d 1095. Third ground: "On account of prejudicial error in giving plaintiff's instruction No. 1." "Action of trial court in granting new trial on giving an instruction is reviewable as matter of law on appeal, since giving of an instruction was matter of law, and whether such action was erroneous was likewise matter of law." Yuronis v. Wells, 17 S.W.2d 519. We submit that plaintiff's given instruction "No. 1" (No. 3) properly declared the law. Loftus v. Ry. Co., 220 Mo. 470. Fourth ground: "Because the verdict of the jury is not responsive to the instructions of the court." We submit that the verdict was responsive to the instructions. It found for the plaintiff on all issues submitted. Standard Milling Co. v. Transit Co., 122 Mo. 258. "The ground on which the set-off should have been denied is that the defendant's claim is in contract, while the plaintiff's claim is in tort." Caldwell v. Ryan, 210 Mo. l. c. 25. "A debt is a legal liability to pay a specific sum of money, and an uncertain and unliquidated claim for damages, whether such claim be founded in tort or in contract, is not a debt. The right of set-off is purely statutory, and since the statute makes debt the sole subject of set-off, and since defendant's claims, being for unliquidated damages, were not debts, it follows the verdict for plaintiff on the notes was not an adjudication of defendant's demands, though they were pleaded in the answer" (italics ours). Brokerage Co. v. Campbell, 164 Mo.App. l. c. 18 and 19. "Where plaintiff sues for conversion, defendant cannot plead judgments as a set-off. Conversion is an action sounding in tort, and judgments are in contract, and the statute allows set-off only when the demands come under the classification of debts, and a demand of damages for a tort is not a debt" (italics ours). Caldwell v. Ryan, 210 Mo. 18; State to use v. Modrell, 15 Mo. 421; Johnson v. Jones, 16 Mo. 494; Manahan v. Ross, 18 Mo. 121; Pratt v. Menkins, 18 Mo. 158; State ex rel. v. Eldridge, 65 Mo. 584. "R. S. Mo. 1929, sec. 837, does not give the right of set-off merely because the relation of debtor and creditor exists for certain purposes, but only where there is a mutuality of the indebtedness." Mitchell v. Bank, 65 S.W.2d l. c. 107. "It is a general rule of practically universal application at law that, to warrant a set-off, the demands must be mutual and subsisting between the same parties, and must be due in the same capacity or right." Dalton v. Sturdivant Bank (St. L. App.), 76 S.W.2d l. c. 426. "If the taking of the farm implements was tortious, no payment could be asserted in such an act, but only a demand for damages." McCormick Harvesting Co. v. Hill, 104 Mo.App. 548. Sec. 3075, R. S. 1929, provides: "All mortgages of real or personal property, or both, with powers of sale in the mortgagee, and all sales made by such mortgagee or his personal representatives in pursuance of the provisions of such mortgages shall be valid and binding by the laws of this State upon the mortgagors, and all persons claiming under them, and shall forever foreclose all right and equity of redemption of the property so sold." "The mortgagee, after default in payment of debt, becomes invested with the absolute title of the property mortgaged." Holmes v. Commission Co., 81 Mo.App. 97; In re Life Assn. v. Rosenbalt, 96 Mo. 632. "Where under a chattel mortgage giving the mortgagee power to sell the property at public or private sale, and to purchase at such sale, the mortgagee sold the property at public sale, and became the purchaser, the integrity of the sale not being attacked, the mortgagee was entitled to a peremptory instruction for the balance due on the notes after applying the proceeds of the sale, hence it was error to refuse it." Clarkson v. Mullin, 62 Mo.App. 622. "The mortgagee of a chattel may purchase at a sale under the mortgage. Such a purchase is good at law, and if voidable in equity it would only be so by unfair dealing, and only at the instance of the interested parties." Parker v. Roberts, 116 Mo. l. c. 666-667. "New trial not granted for invited error, and trial court is not warranted in granting a new trial because of error which has been invited by movant." Carr v. City of St. Joseph, 225 S.W. 922. "Even if the debt or off-set equals or exceeds the value of the converted property the plaintiff is still entitled to nominal damages." Kegan v. Bank (Mo. Sup.), 8 S.W.2d l. c. 872; Stockham v. Leach (Mo. App.), 238 S.W. 853, 855. "Where personal property is mortgaged to secure payment of a debt, the mortgagee becomes invested with the absolute title to the property, after default in payment." Holmes v. Commission Co., 81 Mo.App. 98; Rogers v. Gage, 59 Mo.App. l. c. 112, 113. The description contained in the chattel mortgage covering the pigs was sufficient for the jury's consideration. Holmes v. Commission Co., 81 Mo.App. l. c. 100. "Sufficiency of description of property in chattel mortgage is a question for the jury." Sikes v. Riga, 297 S.W. 727. "Description: '50 suckling pigs, etc.' good." Estes v. Springer, 47 Mo.App. 102. "Description: '35,000 feet of lumber' sufficient; besides, mortgagor could not question sufficiency of description." Boudreau v. Brown (St. L. C. App.), 39 S.W.2d 456. "If the plow company's possessive and proprietary rights were invaded by defendant, it would make no difference whether the tortious act was in his behalf or for someone else." Kegan v. Park Bank, 8 S.W.2d l. c. 873; Bigelow on Torts (7 Ed.), sec. 529, p. 261. This suit being founded on the conversion of livestock, and the conversion being conceded, judgment was for right party, and should not be disturbed by trial court. Homuth v. Ry., 129 Mo. 629. The right of offset would exist only in defendants' favor in a suit on the promissory notes for the deficiency. Clarkson v. Mullin, 62 Mo.App. 622. "In suit on note secured by chattel mortgage, under which plaintiff sold mortgaged property for alleged inadequate sum, burden was on defendant to show that plaintiff did not act in good faith, nor use every reasonable means to obtain full value. Directed verdict for plaintiff sustained for lack of substantial evidence of fraud alleged in the answer." Waltner v. Smith, 274 S.W. 526. "Testimony that automobile, when taken by mortgagee, was in perfect condition and worth more than amount for which sold under mortgage, held not evidence of bad faith and failure to use reasonable means to obtain full value."--Ib. Parker v. Roberts, 116 Mo. 657; "The...