Marr v. Zeidler

• Decision Date: 23 May 1910
• Citation: 145 Mo. App. 199,129 S.W. 469
• Parties: MARR v. ZEIDLER.
• Court: Missouri Court of Appeals

129 S.W. 469

145 Mo. App. 199

MARR v. ZEIDLER.

Kansas City Court of Appeals. Missouri.

May 23, 1910.

Rehearing Denied June 28, 1910.

1. BILLS AND NOTES (§ 518) — ACTION — EVIDENCE — SUFFICIENCY.

In an action in which a note was set up as a counterclaim evidence held not to sustain the allegation of the reply that the note was to be held as a mere memorandum by the defendant, until certain stock in a corporation should be transferred to him.

2. PLEADING (§ 387) — ISSUES AND PROOF.

Notwithstanding the laxity of the Code, the proof must tend in the same direction as the allegations and not flatly contradict them.

3. BILLS AND NOTES (§ 518) — ACTION — EVIDENCE — SUFFICIENCY — CONSIDERATION.

In an action in which a note was set up in counterclaim, evidence held to sustain an averment of the reply that the note was given as a mere memorandum, and was without any consideration whatever.

4. BILLS AND NOTES (§ 489) — ACTION — PLEADING — ISSUES AND PROOF.

In an action in which a note was set up as a counterclaim, allegations of the reply that the note was to be held as a mere memorandum by the defendant until certain corporate stock should be transferred to him, and that the note was given as a mere memorandum, and was without any consideration, were separate and distinct averments, and the latter was not limited in its scope by the former, so that plaintiff was not restricted to proof that the note was given to be held only until the stock should be issued to defendant.

5. APPEAL AND ERROR (§ 171) — PRESENTATION OF QUESTIONS IN LOWER COURT.

Where an action was tried by both parties and by the court on the theory that the issue of lack of consideration of the note was in the case, and defendant made no effort to eliminate the issue, he cannot object on appeal to its consideration.

6. APPEAL AND ERROR (§ 1003) — QUESTIONS OF FACT — REVIEW.

The appellate court cannot reverse the judgment on the ground that the verdict was against the weight of evidence.

Appeal from Circuit Court, Buchanan County.

Action by Julius Marr against John L. Zeidler. From a judgment for plaintiff, defendant appeals. Affirmed.

Brown & Dolman, for appellant. Brewster, Ferrell & Mayer, for respondent.

JOHNSON, J.

Plaintiff sued to recover $3,154.23, money had and received by defendant for plaintiff. In his answer and counterclaim defendant admitted receiving the money for plaintiff, but alleged that plaintiff was indebted to him in the sum of the principal and interest of a promissory note for $1,500, executed and delivered by plaintiff to defendant April 3, 1903, due six months after said date and bearing six per cent. interest per annum from maturity. The amount claimed to be due on the note was $2,026.73, and defendant offered to pay the difference between his indebtedness to plaintiff and the amount of said note, to wit, $1,127.50. The important part of the reply filed by plaintiff is as follows: "Replying to the aforesaid counterclaim pleaded by defendant in defendant's answer, plaintiff states that on the 3d day of April, 1903, he did execute a promissory note to the defendant herein, but plaintiff states that said note was given as a mere memorandum and that it was given without any consideration whatever; that at the time said note was given to defendant by plaintiff, it was understood and agreed between plaintiff and defendant that said note was to be held as a mere memorandum by the defendant until certain stock in a certain corporation, which said stock belonged to defendant, but was held in the plaintiff's name, should be transferred to the defendant and that upon the transfer of said stock, said note should be destroyed. Plaintiff further states that subsequent to the making and delivery of said note to the defendant, said stock was transferred to the defendant herein and that at the time of said transfer of said stock to the defendant, the defendant again agreed to destroy said note. Plaintiff denies that he did at any time pay any interest whatever on said note." The reply was verified by the oath of plaintiff. It will be observed that the controversy between the parties as outlined by the pleadings is confined entirely to the counterclaim. At the trial, defendant voluntarily assumed the burden of proof and introduced evidence which disclosed the following state of facts: The parties are brothers-in-law. Defendant is much older than plaintiff and for many years before his marriage, plaintiff lived with defendant as a member of defendant's family. In 1902, defendant became the trustee in bankruptcy of a hardware store where plaintiff had been employed. The stock had to be sold at trustee's sale, and, as plaintiff desired to continue in the business as manager, instead of employé, defendant helped him organize a corporation to buy the stock and continue the business. Accordingly, a corporation was organized with a capital stock of $6,000 divided into 60 shares of the par value of $100 each, and $5,000 of the capital stock was paid in by the subscribers, and plaintiff subscribed for 29 shares for which he actually paid $2,500. Of the remainder, George Germandt subscribed 29 shares and William Germandt 2 shares. The corporation obtained the stock at the trustee's sale and engaged in the...