Meinholtz v. Lampert, 23646.
| Decision Date | 02 February 1937 |
| Docket Number | No. 23646.,23646. |
| Citation | 101 S.W.2d 503 |
| Parties | MEINHOLTZ v. LAMPERT. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.
"Not to be published in State Reports."
Action by Herman H. Meinholtz against Fred W. Lampert. From a judgment of the circuit court in favor of the defendant, after an appeal from a justice court, the plaintiff appeals, and on his death, Pearl Meinholtz, executrix, was appointed in his place and stead.
Reversed and cause remanded, with directions to enter judgment for the plaintiff.
Benj. A. Wood and R. K. Schurr, both of St. Louis, for appellant.
B. Sherman Landau, of St. Louis, for respondent.
SUTTON, Commissioner.
This action, which was brought by Herman H. Meinholtz in a justice court in the city of St. Louis, is founded on thirteen promissory notes for amounts aggregating $750. On appeal from the justice court, there was a trial anew, with a jury, which resulted in a verdict and judgment for defendant. From this judgment, Herman H. Meinholtz appealed to this court.
Upon the suggestion of the death of Herman H. Meinholtz, since the case came here on appeal, Pearl Meinholtz, executrix of the estate of Herman H. Meinholtz, has been substituted as appellant in his place and stead.
At the conclusion of the whole case, upon the trial in the circuit court, decedent, Herman H. Meinholtz, requested a peremptory instruction directing a verdict in his favor. The refusal of this instruction is assigned as error here.
In March, 1923, decedent, Herman H. Meinholtz, loaned to defendant and his wife, who is decedent's daughter, $5,000, for which amount the defendant and his wife executed to decedent their promissory note. The money thus loaned was used by defendant and his wife in purchasing a confectionery business, located at 3915 North Twenty-fifth street, in St. Louis. A chattel mortgage was given on the confectionery to secure the note. Thereafter, defendant and his wife, during the time they lived together as husband and wife, operated the confectionery, and out of the business paid decedent $500 a year and interest to apply on the note.
In February, 1931, after defendant and his wife had separated, defendant's wife gave decedent a promissory note for $500, and defendant gave him a series of twenty promissory notes for amounts aggregating $1,000. These notes were given in payment of a balance of $1,500 then remaining due on the $5,000 note.
When defendant and his wife separated, he turned the confectionery business over to her, and she afterwards sold the business to one Wefler for $3,000. Of this amount she received $1,200 in cash and $1,800 in promissory notes for $50 each. She received payment of several of these notes from Mr. Wefler, and transferred the others to decedent, who testified that he bought the notes from her for their face amounts and accrued interest, using about $1,300 of the purchase price of the notes in paying off a mortgage covering her automobile, and giving her the remainder in cash.
Five of the series of notes given by defendant to decedent were paid by defendant, leaving the thirteen notes in suit unpaid.
With respect to the execution of the series of twenty notes by defendant and of the $500 note by his wife, decedent testified as follows: Decedent further testified that upon the execution of these notes he tore the $5,000 note in half and gave one-half to defendant and the other to his wife. This was not denied by defendant.
Defendant testified that the money for which the $5,000 note was given was borrowed to buy the confectionery business, and that there was an oral side agreement at that time that the money would be paid back out of the business; that when he and his wife separated he turned the confectionery business, and everything that he owned, over to his wife, who then operated the business; that he told Mr. Meinholtz he would give him the notes provided she would pay $500; that he...
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