De Mayo v. Lyons

• Citation: 216 S.W.2d 436,358 Mo. 646
• Decision Date: 13 December 1948
• Docket Number: 40751
• Parties: Frank DeMayo, Respondent, v. Leonard A. Lyons and Anna B. Lyons, Appellants
• Court: United States State Supreme Court of Missouri

216 S.W.2d 436

358 Mo. 646

Frank DeMayo, Respondent, v. Leonard A. Lyons and Anna B. Lyons, Appellants

No. 40751

Supreme Court of Missouri

December 13, 1948

Rehearing Denied January 7, 1949.

Appeal from Jackson Circuit Court; Hon. James W. Broaddus Judge.

Reversed.

Lillie Knight and Walter A. Raymond for appellants.

(1) General principles of law which should guide the court in the approach to the issues involved in this appeal. Gershon v. Ashkanazie, 199 S.W.2d 38; State ex rel. Wallach v. Raeder, 196 S.W.2d 19; Moore v. Carter, 201 S.W.2d 923. (2) The alleged partnership between plaintiff and defendant, Leonard A. Lyons, for the purchase and sale of whiskey was illegal, void and in violation of the criminal laws of the United States and this state for the reason plaintiff did not have a license to deal in intoxicating liquors and was not qualified to obtain such a license by reason of being an unnaturalized alien, and by reason of having been convicted of a felony. Wilson v. Burke, 202 S.W.2d 876; Sec. 4906, R.S. 1939; Secs. 3116, 3253, Title 26, U.S.C.A.; Regulations 20, 1940, U.S. Treasury Dept. Bureau of Internal Revenue; Title 5, Sec. 22, U.S.C.A.; Secs. 4889, 4895, 4898, R.S. 1939; Rules and Regulations of the Supervisor, Department of Liquor Control, Jefferson City, Mo., Regulations No. 2(g) and 3(a). (3) By reason of the illegality of the partnership arrangement, which is the basis of plaintiff's claim, he is not entitled to maintain this action or to recover from defendants in a court of equity. Idel v. Hamilton-Brown Shoe Co., 343 Mo. 373, 121 S.W.2d 817; Jackson v. City of Columbia, 217 S.W. 869; Finley v. Williamson, 202 Mo.App. 276, 215 S.W. 743; Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874; Rainer v. Western Union Telegraph Co., 91 S.W.2d 202; Moore v. Carter, 201 S.W.2d 923; Leeper v. Kurth, 349 Mo. 938, 163 S.W.2d 1031; Hooper v. Barranti, 184 P.2d 689; Scheeline v. Penzzola, 155 P. 127; Vandegrift v. Vandegrift, 75 A. 365; State v. Parker Distilling Co., 236 Mo. 219, 237 Mo. 103, 139 S.W. 453; State ex rel. Connecticut Fire Ins. Co. v. Cox, 306 Mo. 537, 268 S.W. 87; Thatcher v. Snyder, 308 Ill.App. 325, 31 N.E.2d 333. (4) Plaintiff may not declare upon one cause of action and recover upon another. Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008; Friedel v. Bailey, 329 Mo. 22, 44 S.W.2d 9; State ex rel. Boatmen's Natl. Bank v. Webster Groves General Sewer Dist. No. 1, 327 Mo. 594, 37 S.W.2d 905; Barlow v. Scott, 85 S.W.2d 504; Presbyterian Orphanage of Missouri v. Fitterling, 342 Mo. 299, 114 S.W.2d 1004; Clark v. Heckerman, 346 Mo. 458, 142 S.W.2d 35; Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024; State ex rel. Wolfskill v. Shain, 178 S.W.2d 446. (5) A contract to traffic in warehouse receipts evidencing liquors in storage without a license to buy and sell intoxicating liquors is illegal and unenforcible even if pleaded and established by the evidence. Hagler v. City of Salem, 333 Mo. 330, 62 S.W.2d 751; Northcutt v. McKibben, 236 Mo.App. 605, 159 S.W.2d 699; Beardsley v. Bass, 287 Mo. 393, 229 S.W. 1092; Regulation 20, Sec. 194.27 (a), Regulations 20, U.S. Treasury Dept., Bureau of Internal Revenue; Crosby v. Farose Trading Corp., 27 So.2d 367; Secs. 15539, 15540, R.S. 1939; Russell v. Empire Storage & Ice Co., 322 Mo. 707, 59 S.W.2d 1061.

Walter W. Calvin for respondent.

(1) It is, unquestionably, the duty of the appellant to set forth, in his brief, the facts disclosed by the evidence; and, to make a fair and concise statement of the facts relevant to the questions presented for determination; and, a failure to do so is sufficient ground for dismissal of his appeal. Rules of this court -- 1.08, 1.15; Laws 1943, pp. 353-397; Secs. 847.1-847.145, R.S. 1939; Ely v. Coontz, 167 Mo. 371, 67 S.W. 299; Flanagan Milling Co. v. St. Louis, 222 Mo. 306, 121 S.W. 112; Evans v. General Explosives Co., 293 Mo. 364, 239 S.W. 487; Roberts v. Hogan, 269 S.W. 652; Scanland v. Walters, 324 Mo. 1084, 26 S.W.2d 603; Peck v. Great American Ins. Co. of New York, 230 Mo.App. 325, 90 S.W.2d 415; Brown v. Citizens State Bank, 345 Mo. 480, 134 S.W.2d 116; Emory v. St. Louis Cooperage Co., 137 S.W.2d 663; Lee v. Ullery, 346 Mo. 236, 140 S.W.2d 5; Boland v. Mercantile-Commerce Bank & Trust Co., 349 Mo. 731, 163 S.W.2d 597; Kleinschmidt v. Globe-Democrat Pub. Co., 350 Mo. 250, 165 S.W.2d 620; Jacob Dold Packing Co. v. General Box Co., 186 S.W.2d 216; Gorman v. Kauffman, 188 S.W.2d 70; Walker v. Allebach, 354 Mo. 298, 189 S.W.2d 282; (2) The purpose of the aforesaid rule, requiring the appellant to make a clear and concise statement of the case, without argument, with reference to issues of law or repetition of testimony, is, primarily, to enable the court to be informed of the material facts without having to glean them from the record or transcript on appeal. Roberts v. Hogan, 269 S.W. 652; McDonnell v. Hawkeye Life Ins. Co., 84 S.W.2d 387; Bramhall v. McGhee, 87 S.W.2d 387; Produce Exchange Bank of Kansas City v. Winn, 345 Mo. 420, 133 S.W.2d 419; Beatty v. Zeigel, 237 Mo.App. 1134, 167 S.W.2d 400. (3) The respondent is under no legal duty or obligation to make a statement of facts on appeal; and, indeed, is not even required to file a brief in the appellate court. Fidelity Loan Securities Co. v. Moore, 280 Mo. 315, 217 S.W. 286; Marks v. Acme Phonograph Co., 236 Mo.App. 900, 253 S.W. 174; Hale v. Hale, 22 S.W.2d 56; Deverell v. Eagle-Picher Lead Co., 137 S.W.2d 473; Webb v. Denney, 170 S.W.2d 946. (4) The trial court's findings, in a suit in equity, will not be disturbed unless for obvious error in the application of the law, or serious or important mistake in the consideration of the evidence. New England Loan & Trust Co. v. Browne, 177 Mo. 412, 76 S.W. 954; Seddon v. Holbrook-Blackwelder Real Estate Trust Co., 146 Mo.App. 126, 123 S.W. 994; Ridge v. Healy, 251 F. 798; Hamlin v. Grogan, 257 F. 59; Columbia Pictures Corp. v. Lawton-Byrne-Bruner Ins. Agency, 73 F.2d 18; Esso, Inc., v. Standard Oil Co., 98 F.2d 1. (5) A judgment rendered by a court of record is presumed to be regular; and, in support of its validity, the court which rendered such judgment must be presumed to have found every fact, and correctly reached every conclusion of law, necessary to its validity. Hollowell v. Schuyler County, 322 Mo. 1230, 18 S.W.2d 498; Muse v. E. A. Whitney & Son, 56 S.W.2d 859; Dimity v. Dimity, 62 S.W.2d 859. (6) If the defendant-appellant was retaining what remained of the personal property in question, and also the proceeds which he had, theretofore, received from the sale and disposition of the other portion thereof, and the transaction between the parties had been fully consummated, unless public interest clearly required the contrary, he would not be permitted to avail himself of the illegality, if any, might have permeated the transactions between him and the respondent. 17 C.J.S., sec. 280, p. 669; Wann v. Kelly, 5 F. 584; Van Tine v. Hilands, 131 F. 124; Corporation Trust Co. v. Logan, 52 F.Supp. 990; Gasoline Products Co. v. Champlin Refining Co., 46 F.2d 511; People ex rel. Nelson v. Homewood State Bank, 294 Ill.App. 52, 13 N.E.2d 285; Maxwell v. Maxwell, 1 La. App. 413; Carlyle v. Natl. Oil & Dev. Co., 108 Okla. 18, 234 P. 623; Wagner v. Worrell, 172 P.2d 751.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Respondent has filed a motion to dismiss the appeal in this cause, which motion was taken with the case. The ground of the motion is that appellants' statement does not comply with Rule 1.08 as to a fair and concise statement of the facts without argument, etc. The statement would not be commended as a model; few would so grade. Dismissal of an appeal is a drastic penalty and such penalty will not be applied unless fully warranted by the violations complained of. See Neal v. Kansas City Public Service Co., 353 Mo. 779, 184 S.W.2d 441. We do not think that the appeal should be dismissed, hence the motion to dismiss is overruled.

Hereinafter the term appellant has reference to defendant Leonard A. Lyons unless otherwise noted. The cause is for an accounting; was referred; the trial court approved the report of the referee; rendered a general judgment in favor of plaintiff (respondent) and against appellant in the sum of $ 22,004.09. The judgment was made an equitable lien upon certain whiskey and the warehouse receipts therefor. Motion for a new trial was overruled and this appeal followed.

On or about January 29, 1944, the Bismarck Grill, Inc. was operating a retail liquor store and restaurant at the northeast corner of 9th and Walnut, Kansas City. The capital stock was $ 2,000.00, and there were 100 shares of $ 20.00 each. Appellant owned 98 shares, his wife defendant Anna B. Lyons, one share, and his sister one share. Appellant was manager. At that time the American Distilling Company, Peoria, Illinois, was selling some of its stock to licensed liquor dealers at $ 105.00 per share. Those who bought this stock could buy from the distilling company, on each share, 16 cases of special privilege brand whiskey at $ 28.00 per case, and 2 cases of prerogative brand at $ 42.00 per case. Respondent and appellant agreed to purchase, in the name of the Bismarck Grill, 90 shares of the distilling company stock and did so. And they agreed that there would be purchased from the distilling company, in the name of the Bismarck Grill, as much liquor as could be purchased on the 90 shares. The Bismarck Grill was to sell the liquor and the profits were to be divided equally between respondent and appellant. Respondent, for his payment on half of the stock purchase, gave his check, on January 29, 1944, to appellant for $ 5580.00. This was $ 855.00 in excess of one half of the cost of the stock. All told, before the cause...