McIntosh v. White, 8897
| Decision Date | 30 October 1969 |
| Docket Number | No. 8897,8897 |
| Citation | 447 S.W.2d 75 |
| Parties | 7 UCC Rep.Serv. 208 Myron A. McINTOSH and Mary M. McIntosh, Plaintiffs-Appellants, v. Dennis WHITE, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Kenneth J. Elliff, Carthage, for plaintiffs-appellants.
James A. Dunn, Carthage, for defendant-respondent.
This is an action on a promissory note. The case originated in magistrate court. On defendant's filing an affidavit for change of venue, the case was certified to the circuit court where it was tried without the intervention of a jury. The trial court found for the defendant and the plaintiffs have appealed.
The instrument in suit is an ordinary demand note in the sum of $1,000.00. It is fully negotiable. Plaintiffs are the payees, defendant the sole maker. The note has not been indorsed or, so far as the record shows, otherwise transferred since it was issued. It is admitted by the defendant that the note was executed on September 15, 1967, and he admits the genuineness of his signature as maker. It is further admitted that the note was given in payment or in part payment for an automobile.
Since the case originated in magistrate court and no set-off or counterclaim was asserted, no responsive pleading was required, § 517.050, 1 and none was filed. However, on counsel's representation that there was '* * * a question about * * * the execution and consideration for the note,' the defendant was permitted to show the circumstances in which the note was executed. As the plaintiffs concede, the evidence touching those circumstances is confused and conflicting.
At the time the note in suit was executed, Myron McIntosh had several automobiles he wanted to sell. One of them, a 1963 Cadillac, belonged to McIntosh and his wife; there were three or perhaps four others which belonged to McIntosh's father. The defendant was a used car dealer. According to McIntosh, all the automobiles, along with titles assigned in blank were delivered to the defendant for sale. White admitted that the Cadillac 'set on my lot' for 'about a week,' but vigorously denied that title to the Cadillac was ever assigned to him, in blank or otherwise. White testified that the other automobiles were consigned to his father, who operated an automobile auction next door, and 'one (of the vehicles) sold through that auction.'
In any event, a Mr. Bill Berry, plaintiffs' former son-in-law, became interested in buying the Cadillac. McIntosh denied that he ever agreed to sell the car to Berry because '(h)e had just had a divorce from my daughter, and I knew the situation on his credit rating; he had no money to pay down, so I would not sell it to him but I sold it to Mr. White.' Berry and White both denied that they had arranged the sale between themselves; Berry's testimony was that McIntosh agreed to sell him the Cadillac for $2,000.00 and agreed to accept a promissory note as payment. Berry also testified that he had attempted to borrow the full purchase price but was refused, although the bank to which he applied agreed to lend him $1,000.00. This was sufficient to pay the amount McIntosh owed on the car, but in order to pay the balance it was necessary for Berry to sell the automobile he then owned, a Ford.
The three men, McIntosh, Berry and White, discussed the transaction in McIntosh's office after the bank refused to lend Berry the full purchase price. Defendant's testimony was that 'at the time' they were 'all good friends,' and at McIntosh's request he had executed the note in suit 'as an accommodation' 'so Mr. McIntosh could get his money all at once.' McIntosh had then said 'when Mr. Berry sells the Ford, he can take this (the proceeds) and pay off the note.'
Berry's Ford was delivered to the defendant for sale. Berry fell behind in his payments on the $1,000.00 note he had made at the bank, and McIntosh was advised of Berry's imminent delinquency by his daughter, who had since remarried Beery. Mrs. Berry stated that she had told McIntosh 'we were going to have to let it (the Cadillac) go back to the bank,' and McIntosh had told her that he would give her the car 'as (her) inheritance' from her grandfather who had just died. McIntosh had, it seems, guaranteed Berry's note, and when Berry's impending delinquency came to his attention, McIntosh, in his words, 'paid off the note and picked up the note, the chattel mortgage, insurance policy, and also the title that was in Bill Berry's name and took (them) out to her (Mrs. Berry's) house.' Mrs. Berry's recollection was that her father had told her she could do what she wanted with the Ford, and when she asked 'about the other thousand dollars * * * he said that I didn't have to worry about it, that he was dropping the proceedings.' Mr. Berry's Ford was later sold. The proceeds were not applied to the note which the defendant executed; Mr. Berry testified that White had nothing to do with the sale of the Ford, that he 'sold it through an ad in the newspaper,' and that he used the money 'to pay bills with.' Nothing was paid on the note and this action followed.
No findings of fact nor conclusions of law were made, and the plaintiffs assert that the failure to make such findings was error, in view of the timely request made by the parties. Rule 73.01(b) provide that in cases tried without a jury, the court shall dictate to the court reporter, or prepare and file a brief opinion containing a statement of the grounds for its decision and the method of determining any damages awarded, and may, or if specifically requested by counsel, shall, include its findings on any of the principal controverted fact issues. This requirement of Rule 73.01 is mandatory, State ex rel. O'Brien v. Petry, Mo.App., 397 S.W.2d 1, 5(1); Witte v. Cooke Tractor Co., Mo.App., 261 S.W.2d 651, 660(24), but the rule requires that a request for findings be made 'before final submission,' and the submission is 'final' when the evidence and the arguments are finished and the court takes the case, whether it is taken for immediate decision or merely under advisement preliminary to the rendition of a decision. Payne v. White, Mo.App., 288 S.W.2d 6, 7--8(1, 2). In this case, there is nothing in the record of the proceeding, prior to final submission, indicating that either party asked for findings of fact and conclusions of law. It is true that plaintiffs asserted in their aftertrial motion that findings were requested 'following trial of this action,' but aside from the fact that allegations in aftertrial motions do not prove themselves, Block v. Rackers, Mo., 256 S.W.2d 760, 764(5), the transcript shows that the trial court rendered a decision as soon as the parties finished the presentation of their evidence. In these circumstances, we must hold that the request made 'following the trial' came too late. Payne v. White, supra, 288 S.W.2d at 7--8(1, 2). We will assume that all fact issues were found in accordance with the result reached. Rule 73.01(b); Beckemeier v. Baessler, Mo., 270 S.W.2d 782, 786--787(3).
Since no responsive pleading was filed, and no findings of fact were made, it is obviously impossible to know what the basis of the trial court's decision actually was. Plaintiffs proceed here on the assumption that the trial court found for the defendant either because it found that the title to the Cadillac was not properly transferred, or because it found that the defendant signed the note as an accommodation maker for the payees. Accordingly, the appellant plaintiffs have briefed and argued two points. The first is that since consideration was given for the note it was enforceable, regardless of the evidence concerning the title; the second point is that the note was not accommodation paper, but if so the accommodated party was Berry, and no consideration was required to pass to the defendant. We will take the case as it has been presented, but it is a court-tried case decided without findings of fact and without any indication of the theory upon which the trial court acted, and therefore we must affirm the judgment if it is correct on any theory supported by the evidence. Edgar v. Fitzpatrick, Mo., 377 S.W.2d 314, 318(12); Lossing v. Shull, 351 Mo. 342, 351, 173 S.W.2d 1, 5(1); McCrory v. Monroe, Mo.App., 336 S.W.2d 118, 121(1).
We have considered the plaintiffs' argument that the note in suit is not accommodation paper. Berry, under the present law, cannot have been the party accommodated. § 400.3--415(1) requires that the accommodated party be a party to the instrument, and Berry did not sign it. 2 as far as the plaintiffs are concerned, it is true as a general principle that the payee may be the party to whom the accommodation maker lends his name, 11 Am.Jur.2d Bills and Notes, § 121, pp. 163--164, and under § 400.3--415(5) an accommodation party is not...
To continue reading
Request your trial
-
Cooperative Finance Ass'n, Inc. v. Garst
...enable another party to the paper to obtain a loan is an accommodation party." Landmark KCI Bank, 786 S.W.2d at 137; McIntosh v. White, 447 S.W.2d 75, 78 (Mo.Ct.App.1969). However, where the purported accommodation party's signature is "altogether irrelevant" to the willingness of the lende......
-
State Farm Mut. Auto. Ins. Co. v. MFA Mut. Ins. Co.
...Zurich Insurance Company, Mo., 441 S.W.2d 15, 25(5); Still v. Travelers Indemnity Company, Mo., 374 S.W.2d 95, 99(1); McIntosh v. White, Mo.App., 447 S.W.2d 75, 80(13); Galati v. New Amsterdam Casualty Company, Mo.App., 381 S.W.2d 5, 7(1); Bordman Invest. Co. v. Peoples Bank of Kansas City,......
-
Corley v. Kiser
... ... McNeill, 456 S.W.2d 800, 808(9) (Mo.App.1970); McIntosh v. White, 447 S.W.2d 75, 77-78(1-4) (Mo.App.1969); Payne v. White, 288 S.W.2d 6, 7-8(1-2) ... ...
-
Tennis v. General Motors Corp., s. 11907
...of the evidence. Allegations in after-trial motions, and in an appellant's brief do not prove themselves. McIntosh v. White, 447 S.W.2d 75, 78(3) (Mo.App.1969). Universal admits to finding only one reported Missouri case on the subject of note-taking by jurors. Albeit Universal claims State......