Liepman v. Rothschild
| Citation | 262 S.W. 685,216 Mo.App. 251 |
| Parties | RICHARD LIEPMAN, Respondent, v. JACOB ROTHSCHILD, Appellant |
| Decision Date | 12 May 1924 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court of Greene County.--Hon. Orin Patterson Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Barbour & McDavid and E. A. Barbour, Jr., for appellant.
(1) Defendant pleaded a counterclaim, the court instructed thereon, but the jury failed to return a verdict thereon. This failure renders the judgment void and defendant's motion in arrest of judgment should have been sustained by the trial court. Winkelman v. Maddox, 119 Mo.App 658; Gawk v. Millovich, 203 S.W. 1006; Diamond v. McVey, 239 S.W. 562; Miller v O'Connell, 235 S.W. 137; Hughey v. Eyssell, 167 Mo.App. 563. Defendant's counterclaim arises under the second sub-division of section 1233, R. S. 1919. Sec. 1233, R. S. 1919, second; School Directors v. Bank, 84 Mo. 56; Jackson v. Dolan, 157 Mo.App. 32; Crane v. Murray, 106 Mo.App. 697. (2) The court erred in not sustaining defendant's demurrer to the evidence on the second count of plaintiff's petition, which second count involves a one-half interest in the $ 1060 of marks conceded to have been purchased by the plaintiff. (a) The marks in question were dealt in as a commodity and were treated as an object of barter and sale, and the alleged sale is within the Statute of Fraud. 27 Corpus Juris, 238, sec. 263; Fowler v. Bank, 67 N.Y. 230; Reisfreed v. Jacobs, 176 N.Y.S. 223. (b) It is conceded that there was no agreement in writing for the sale and purchase of a half interest in the $ 1060 of marks sued for in the second count of plaintiff's petition and no written memorandum, and nothing paid thereon. (c) There was no acceptance by the defendant and no legal delivery of possession of any of said marks to him. Under the statute there must be both delivery to and acceptance by vendee. He must have unequivocal control. Ficklin v. Tinder, 161 Mo.App. 283; Parmer v. Elsberry, 79 Mo.App. 570; Shelton v. Bennett, 96 Mo.App. 102; Ruediger v. Dennis, 199 Mo.App. 102.
Haymes & Dickey for respondent.
(1) The verdict is responsive to all the issues and disposes of them all, including defendant's counterclaim. Pope v. Ramsey, 78 Mo.App. 157, 162; Taylor v. Short, 38 Mo.App. 21; Graves v. Railroad, 133 Mo.App. 91. (2) Verdicts must be construed liberally, not strictly, and are to be avoided only from necessity. 38 Cyc. 1901; 27 R. C. L., page 858 (sec. 30); Rembaugh v. Phipps, 75 Mo. 422. (3) Defendant's counterclaim arises under the first sub-division of the counterclaim section (sec. 1233, R. S. 1919); it arises out of the same transaction as set forth in plaintiff's cause of action; it is connected with the same subject of action; therefore no separate finding on the counterclaim was required. Ritchie v. Haywood, 71 Mo. 562; Barnard v. Weaver, 224 S.W. 152; Nelson v. Troll, Admr., 173 Mo.App. 51; Cosgrove v. Stange et al., 194 Mo.App. 14, and cases cited; Norvell v. Mode, 132 Mo.App. 232. (4) The marks involved in the second count of plaintiff's petition cannot be held to be goods, wares and merchanidse, as they were not dealt in as a commodity, but as money. 35 Cyc. 44; Cooke v. Davis, 53 N.Y. 318; Peabody v. Speyers, 56 N.Y. 230; Boston Inv. Co. v. Boston, 158 Mass. 461, 33 N.E. 580; Vincent v. Vieths, 60 Mo.App. 9. (5) Courts will not reverse a case or disturb a verdict and judgment on a matter of instructions, unless they misled the jury against the complaining party and affect the merits of the case. Sec. 1513, R. S. 1919; Harrison v. White, 56 Mo.App. 175; Price v. Railroad, 185 Mo.App. 432.
The plaintiff recovered a judgment in the trial court against the defendant in the sum of $ 2338.68, which was the result of a trial by a jury, from which judgment the defendant appeals alleging a number of errors in the trial.
The cause of action grew out of the purchase of German marks by the parties to this law suit. The petition filed by the plaintiff contained two counts; the first count alleges that plaintiff and defendant purchased $ 3500 worth of German marks and defendant was to own $ 1500 worth of them and plaintiff $ 2000 worth, and that the understanding between them was that the plaintiff would pay the full $ 3500 and defendant agreed to reimburse him to the amount of $ 1500, being the amount of marks coming to him. The second count is for $ 530, it being alleged by the plaintiff that he sold to the defendant a one-half interest in a purchase of $ 1060 worth of German marks, which amount the defendant wholly failed to pay.
The answer of defendant is, first, a general denial; second, a plea of the Statute of Frauds as to the second count; and third, a counterclaim asking for $ 2017.80 damages, wherein it is alleged that the defendant owned marks to that value which were turned over to the plaintiff with the agreement that he, plaintiff would deposit them in defendant's name in a bank in Berlin and would either deliver the marks to him on request, or would sell them at the request of the defendant, and that the plaintiff refused to either deliver or sell said marks, and as a result, the marks having depreciated in value, caused a loss to the defendant. The counterclaim undoubtedly was treated by the defendant as a breach of contract and sought recovery for such indebtedness.
A great deal of the abstract is taken up with the first count of plaintiff's petition which went to the recovery of $ 1500. The evidence is contradictory but it is admitted in oral argument by the appellant that there was sufficient evidence to sustain the finding of the jury on that count, hence there is no question here concerning the verdict of the jury on the first count.
On the second count the appellant contends that there was no evidence of any delivery by the plaintiff to the defendant of the marks sued for in plaintiff's second count either to the defendant or any one for him, and we are inclined to believe that the appellant is correct in this contention.
The evidence, to which both parties agree, as to this count is that the plaintiff purchased $ 1060 worth of marks in the name of his brother, who lived in Germany, and that the defendant requested that he be permitted to share in one-half of that purchase. The plaintiff's testimony clearly shows that he did agree orally to let the plaintiff have a half interest in this purchase of $ 1060 worth of German marks, but the evidence shows that he at no time delivered or offered to the plaintiff the marks or any evidence thereof, nor did he ever deposit them with any bank or any person in Germany for the defendant. These particular marks were deposited in the Deutsche National Bank at Gerstemunde in the name of Mr. Richard Liepman. They were not deposited by the plaintiff in the name of Liepman and the defendant, but as far as the evidence in this case goes this purchase of marks was always kept under the absolute control of the plaintiff, and although the plaintiff, when he went on a trip to Germany, had the bank in which this purchase of $ 1060 worth of marks was deposited, send the defendant a draft for all other marks which the defendant had delivered to the plaintiff to be deposited there, he, the plaintiff, admits that no part of this purchase of $ 1060 worth of marks was included in the draft, and offers as an explanation that he thought they could settle that up later. The plaintiff's evidence clearly shows that he at no time turned over the unconditional control of the $ 530 worth of marks to the defendant, or to any agent for the defendant.
Whether these marks were purchased according to plaintiff's version, for the purpose of having spending money on a contemplated trip to Europe, or whether, according to defendant's theory, th...
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