Kopff v. Miller

• Decision Date: 23 October 1973
• Docket Number: No. 34981,34981
• Citation: 501 S.W.2d 532
• Parties: Milton W. KOPFF, Plaintiff-Respondent, v. Kenneth MILLER and Betty Miller, Defendants-Appellants. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 532

501 S.W.2d 532

Milton W. KOPFF, Plaintiff-Respondent, v. Kenneth MILLER and Betty Miller, Defendants-Appellants.

No. 34981.

Missouri Court of Appeals, St. Louis District, Division One.

Oct. 23, 1973.

Motion for Rehearing or Transfer Denied Nov. 13, 1973.

Shaw & Howlett, Keith W. Hazelwood, Clayton, for defendants-appellants.

Politte & Thayer, Washington, for plaintiff-respondent.

SIMEONE, Judge.

This is an appeal by defendants-appellants, Kenneth and Betty Miller from a judgment of the Circuit Court of Franklin County entered upon a jury verdict in favor of plaintiff-respondent, Milton W. Kopff.

Plaintiff Kopff brought suit on a promissory note dated January 17, 1963 in the principal amount of $3,500.00 pyable to him and signed by Kenneth and Betty Miller. The note provided that 'Sxity days after date, for value received we promise to pay to the order of Milton W. Kopff Thirty Five Hundred Dollars' with 'interest at six percent per annum after January 17, 1963 until paid.' The note also authorized attorney's fees in the amount of $420.00.

On February 23, 1972, Kopff instituted suit by the filing of his petition against the Millers and alleged nonpayment. In due and proper time the Millers filed their answer denying certain allegations of the petition and affirmatively alleged 'failure of consideration.' Trial before a jury commenced July 27, 1972. Mr. Kopff testified that he was formerly in the plumbing contracting business. In 1963 he worked as a subcontractor for Miller on the Pacific Baptist Church building in Pacific, Missouri, and that when he completed the plumbing work, there was a balance due of $3,500.00. At his request, Mr. and Mrs. Miller signed the note in question, and no principal or interest had been paid although the makers were requested several times to do so.

During the cross-examination of the plaintiff, and out of the hearing of the jury, the attorney for the defendants informed the court that Mr. Miller would testify to the fact that at the time this note became due Mr. Miller and Mr. Kopff had reached an agreement whereby Mr. Miller had assigned his contract with the trustees of the Pacific Baptist Church to Mr. Kopff which was the payment for the note. The attorney for the defendants desired to inquire whether Kopff had received any payments pursuant to that agreement. Whereupon, plaintiff's attorney indicated that 'Now, he's trying to bring in around-the-corner payment. Now, if Mr. Kopff has received payment they should have alleged it in their (answer).' After the colloquy the Court permitted defense counsel to 'ask the question if he's been paid . . . by anyone.' When asked whether he 'at any time (received) any payments direct from the trustees of the Pacific Baptist Church', Mr. Kopff answered in the negative.

Mr. Miller testified that he was the general contractor for some work to be done for the Pacific Heights Baptist Church, and he subcontracted the plumbing to Mr. Kopff. The work done by Mr. Kopff was satisfactory, but he did not personally pay for the work.

Miller testified that the subcontractors were paid through a bank, and that Mr. Kopff was 'paid off at Community Federal in Clayton, Missouri.' He admitted signing the note but did not remember why.

During direct examination, Miller's attorney asked, 'Did you do anything with the contract you had with the trustees and Mr. Kopff?' An objection was made on the ground that the note was signed by Miller and 'they haven't alleged payment.' To allow further questioning it was contended would bring in a 'collateral issue at this late date . . .' The Court commented that the matter was not pleaded, whereupon defendants' attorney requested leave to amend the pleadings to conform to the evidence. The Court declined to allow the amendment. Despite this, defendants' attorney asked Mr. Miller whether he knew Mr. Kopff ever 'received any money from anybody on that note.' And Miller replied that he was 'paid off on the note at Clayton, Missouri.'

Mr. Kopff was called as an adverse witness in the defendants' case, and defense counsel sought to show that Kopff failed to file a mechanic's lien on the church property. The trial court refused to permit defense counsel to inquire respecting the failure of the plaintiff to file a mechanic's lien.

One of the former trustees of the church testified that funds for the construction were placed in escrow for disbursement to the subcontractors. He testified that all the subcontractors were paid for the services that were rendered in the construction of the church, although on cross examination he indicated that he did not know whether Kopff ever signed a release saying he was paid in full because he left as a trustee.

At the close of the evidence the court gave Instruction No. 3, the plaintiff's verdict director. ¹ The court also gave Instruction No. 5 which informed the jury that if at the time the note was executed 'nothing was paid to the defendants . . . for the same and . . . that plaintiff did not part with anything of value in consideration of the note . . .', then the note was without consideration and verdict should be for defendants.

Instruction No. 6 instructed the jury to find for the defendants 'if from all the facts and circumstances given in evidence you find said note has been paid off. . . .'

The court refused to tender defendants' proffered instructions numbers 9, 10, 11 and 12 relating to the issue that the note was signed and made by the defendants for the accommodation of the plaintiff Kopff.

The jury returned a verdict for the plaintiff and assessed plaintiff's recovery at $3,500.00 principal, $1,995.00 interest, and $420.00 attorney's fees. Judgment was duly entered thereon.

Defendants, in time, filed their motion for new trial alleging various trial errors. A general objection was made to the giving of Instruction No. 3.

On this appeal defendants contend that the trial court erred (1) in failing to grant the appellants leave to amend the pleadings to plead the affirmative defense of payment, (2) in refusing to permit appellants to cross-examine the plaintiff concerning his failure to file a mechanic's lien on the church property which, it is contended, is indicative of payment made to the plaintiff, and that the defendants were accommodation makers until the payments were made by the church, (3) in giving, over appellants' objection, Instruction No. 3, and (4) in refusing to give the defendants' offered instructions relating to accommodation.

Rule 55.54, V.A.M.R. provides in pertinent part that '. . . If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. . . .'

It has been consistently held that while courts should be liberal in permitting amendments to pleadings, whether a particular amendment should be permitted is primarily within the sound judicial discretion of the trial judge whose action will not be disturbed where there is no showing that such discretion has been palpably and obviously abused. Parsons Construction Co. v. Missouri Public Serv. Co., 425 S.W.2d 166, 174 (Mo.1968); Pender v. Foeste, 329 S.W.2d 656 (Mo.1959).

Appellants rely on People's Trust and Savings Co. v. Arthaud, 22 S.W.2d 860 (Mo.App.1929). In that case the trial court allowed an amendment to the pleadings to conform to the proof of payment, and this court held that allowing amendments is largely within the discretion of the trial court and its action in allowing an amendment will not usually be disturbed on appeal. More recently, the Missouri Supreme Court has held that it...