Latta v. Robinson Erection Co.

Decision Date17 April 1952
Docket NumberNo. 42457,42457
Citation248 S.W.2d 569,363 Mo. 47
PartiesLATTA et ux. v. ROBINSON ERECTION CO. et al.
CourtMissouri Supreme Court

James M. Douglas, Karol A. Korngold, St. Louis, Thompson, Mitchell, Thompson & Douglas and Frey & Korngold, all of St. Louis, of counsel, for appellants.

Daniel P. Reardon, John S. Marsalek and Moser, Marsalek, Carpenter, Cleary & Carter, all of St. Louis, for Robinson Const. Co., A. Robinson and Honorable Michael J. Scott.

DALTON, Judge.

Action to recover the amount of principal, interest and attorneys' fees alleged to be due on two described notes. The execution, delivery and non-payment of the notes was admitted and the cause was defended on the ground of want of consideration and fraud. Trial to a jury resulted in a verdict and judgment for plaintiffs for $65,187.31, being the amount of principal, interest and attorneys' fees claimed be due. Defendants moved for a new trial and the trial court ordered a remittitur of $28,000, within ten days, otherwise defendants' motion for a new trial would be sustained on the ground that the verdict was excessive. The remittitur was not made and no further order was entered.

Defendants subsequently obtained a special order of appeal, apparently on the theory that a final judgment had been entered against them on the verdict of the jury. Sec. 512.060 RSMo1949, V.A.M.S. This action was no doubt due to the uncertainty as to whether the order for a remittitur constituted an order sustaining the motion for a new trial, or whether the motion for a new trial was in fact overruled by the lapse of ninety days in the absence of a further order. Sec. 510.360 RSMo 1949, V.A.M.S. Plaintiffs also obtained a special order of appeal from the order granting new trial. The matter of the order has not been settled by the opinion of this court in Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426, 429. The remittitur not having been made within the time provided, the motion for a new trial stood sustained on the ground that the verdict was excessive. Defendants, therefore, had nothing to appeal from and their appeal is dismissed. We shall refer to the plaintiffs below as plaintiffs, or as appellants, and to defendants below, as defendants or as respondents.

The petition, in two counts to recover on the two notes, is in the usual form. Defendants by answer alleged that the notes were 'given to plaintiffs by defendants wholly without consideration'; and that defendants 'were induced to sign and did sign' the notes by fraud on the part of the plaintiffs in that plaintiffs falsely and fraudulently represented to defendants that the amount of said notes represented one-half (1/2) of the loss incurred in the completion of a certain contract entered into by plaintiffs and defendant Al Robinson as partners or joint adventurers; that 'plaintiffs falsely and fraudulently represented to defendants that said sum was the amount due and owing after all proper setoffs and deductions'; that 'plaintiffs knew that said sum so represented as being due and owing by defendants was not a true accounting between the partners'; and that 'said representations were material and were relied upon by the defendants and defendants were directly thereby inducted to sign' said notes to their detriment. The reply was a general denial.

Appellants assign error on the action of the trial court in sustaining defendants' motion for a new trial. It is contended that the court abused its discretion in granting a new trial on the ground of an excessive verdict, since the verdict was for the amount due under the terms of the notes; that no defense was shown; and that the court should have directed a verdict for plaintiffs. Respondents insist that 'the evidence presents a question for the jury with respect to fraud on the part of plaintiffs'; that reversible error appears in the instructions given to the jury on plaintiffs' behalf; that the granting of a new trial on the ground of an excessive verdict is equivalent to granting a new trial on the ground that the verdict is against the weight of the evidence; and that the granting of a new trial, under the facts shown by the record, was within the trial court's discretion. The material facts are not in dispute and we think the trial court should have directed a verdict for plaintiffs; and that it erred in granting defendants a new trial.

The notes in question were given in an alleged settlement of certain contractual relationships and liabilities between the parties. On or about February 10, 1948, plaintiffs entered into a contract with the United States Government for the building of a low water overflow dam in the Wood River Diversion Channel, in Madison County, Illinois. Subsequently, on February 27, 1948, plaintiffs and defendant Al Robinson entered into a written contract under which plaintiffs and said defendant agreed to carry out, as joint adventurers, the plaintiffs' said contract with the United States Government. Shortly thereafter, and by agreement between plaintiffs and Al Robinson, said defendant assigned his interest in the joint venture to the defendant Robinson Erection Company (now known as Robinson Construction Company), upon the express agreement that Robinson individually would remain personally liable under his contract of February 27, 1948; and that the said Robinson Erection Company would assume the full liability of a joint adventurer and become liable to plaintiffs for all the liabilities and undertakings of Al Robinson under the said contract. The contract of February 27, 1948, among other things, provided that: (a) a separate bank account of the joint venture was to be established and maintained, funds were to be withdrawn only upon the joint signatures of the parties or their respective duly authorized representatives and each party agreed forthwith to put $5,000 in said account and, in the event additional funds were required, 'to deposit in the aforesaid checking account onehalf of such additional funds as may be required in the performance of said contract'; (b) all monies received from the Government under plaintiffs' contract were to be deposited in the said bank account and all expenses were to be paid out of said funds; (c) each party was to further furnish an equal amount of the funds necessary or requisite to the performance of the Government contract; (d) the parties were to share the profits and losses equally; (e) 'miscellaneous services performed and material and equipment furnished or rented by either party * * * for the benefit of said joint undertaking,' were to be billed monthly as against the joint undertaking, and were to be paid monthly out of the bank account maintained as aforesaid, and the rates charged for equipment so furnished or rented were to be 'the then currently negotiated rates'; (f) if a loss was incurred, defendants were to pay plaintiffs, on demand, one-half of the loss; and (g) if disagreements could not be amicably adjusted between the parties, arbitration was provided for.

After the contract of February 27, 1948, was entered into, the plaintiffs and defendants put up the $5,000 each, as agreed, and as the work progressed the respective parties put up an additional $40,000 each. After a total advancement of $45,000, defendants refused to advance additional sums and plaintiffs advanced the necessary additional funds, completed the contract and paid all liabilities incurred. Defendants' last advancement of some $25,000 was apparently made in February 1949.

Plaintiffs were in the equipment rental, earth moving and concrete construction business. Joseph E. Latta was the active member of plaintiffs' co-partnership and he represented plaintiffs in connection with the joint venture in carrying out the contract for the construction of the Wood River Overflow Dam in question. Defendant Al Robinson had been in the construction business since 1939. He was the president and, for all practical purposes, he was the Robinson Erection Company. One J. A. Adams was defendants' representative in charge of the joint venture for the defendants. They were paying him and the job was 'pretty much' up to him. Clayton W. McAuliff, an employee of the joint venture, was office manager and bookkeeper for the project. His office and records were 'on the job site,' and his duties included keeping all records and making reports with reference to the 'financial picture.' Latta and Robinson were called as witnesses for the defendants, while Adams and McAuliff testified for the plaintiffs.

Performance of the Government contract required that much equipment be obtained on a rental basis and such was the normal procedure. Most of this equipment was rented from the plaintiffs, but some was rented from defendants and other companies. Latta testified that, within a month after the contract was awarded, rates for every piece of construction equipment to be furnished by plaintiffs and used on the job were 'negotiated' on the basis of the equipment rental rates set forth in the Associated Equipment Dealers Construction Rental Rate Catalogue, a book known to the trade as 'The Green Book.' Latta said these rates were the commonly used and the generally accepted rental rates for construction equipment in the construction industry. The 'old Green Book' rates were to apply for old equipment and the 'new Green Book' rates were to apply for new equipment and all rates charged for the duration of the contract were on the basis of the Green Book rates. The agreement was had with Adams and Robinson. The rental rates charged by plaintiffs for rental equipment furnished the joint venture from the beginning to the end of the job were the agreed rates shown by the 'Green Book.'

In the latter part of 1948, Robinson said he knew that plaintiffs' equipment was on the job and charges for rentals were being made and paid. He admitted he had discussed...

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20 cases
  • Kreutz v. Wolff
    • United States
    • Missouri Court of Appeals
    • November 29, 1977
    ...evidence of any affirmative defenses the trial court should direct a verdict in favor of the holders, Latta v. Robinson Erection Co., 363 Mo. 47, 248 S.W.2d 569, 577-78 (Mo. banc 1952); Vandivort v. Dodds Truck Line, Inc., supra. Appellants admitted execution of the promissory note at issue......
  • Huttegger v. Davis
    • United States
    • Missouri Supreme Court
    • May 13, 1980 rely thereon; and (6) proximate injury. See Ackmann v. Keeney-Toelle Real Estate Co., supra. Or, as stated, Latta v. Robinson Erection Co., 363 Mo. 47, 248 S.W.2d 569 (banc 1952), to make a cause of action for fraud, plaintiffs must plead and prove: that a representation was made as a st......
  • John Deere Co. of St. Louis v. Davis
    • United States
    • Missouri Court of Appeals
    • May 16, 1960
    ...right to a directed verdict, if this were a suit by Missco Implement Company, the payee in the note. Latta v. Robinson Erection Co., 363 Mo. 47, 248 S.W.2d 569, 577-578(4); Arthur Fels Bond & Mortgage Co. v. Pollock, 347 Mo. 853, 149 S.W.2d 356, 360(7); Rubinic v. Sabados, Mo.App., 264 S.W.......
  • Sullenger v. Cooke Sales & Service Co.
    • United States
    • Missouri Supreme Court
    • February 23, 1983
    ...that he did in fact rely on it and was induced thereby to act to his injury and damage. Id. at 512 (quoting Latta v. Robinson Erection Co., 363 Mo. 47, 59, 248 S.W.2d 569, 576 (banc 1952)) (emphasis added). The test for determining "where the cause of action accrued" within the meaning of t......
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