Miller v. Bennett

• Decision Date: 14 June 1943
• Citation: 172 S.W.2d 960,237 Mo.App. 1285
• Parties: Charles M. Miller, Respondent, v. James E. Bennett et al., Appellants
• Court: Kansas Court of Appeals

172 S.W.2d 960

237 Mo.App. 1285

Charles M. Miller, Respondent, v. James E. Bennett et al., Appellants

Court of Appeals of Missouri, Kansas City

June 14, 1943

Appeal from Jackson Circuit Court; Hon. Emory H. Wright, Judge.

Reversed and remanded.

E R. Morrison and Morrison, Nugent, Berger & Johns for appellants.

(1) The petition neither alleges a consideration nor a mutually binding contract and the court should have sustained the demurrer to the petition or the motion in arrest of judgment. (a) The allegation of a "good consideration" is a conclusion and has no effect. Swift v. Central Union Fire Ins. Co., 279 Mo. 606; William R. Bush Const. Co. v Bambrick-Bates Const. Co. et al., 176 Mo.App. 608; German Bank v. Mulhall, 8 Mo.App. 558; Silva v Robinson (Fla.), 156 So. 280; Miller v. Gusta et al. (Cal.), 283 P. 946; Polaris Bldg. Corp. v. Bimberg et al., 241 N.Y.S. 738; Burke v. Leming Lumber Co., 121 Ark. 194, 180 S.W. 499. (b) The agreement alleged is not mutually binding. Huttig v. Brennan, 328 Mo. 471, 41 S.W.2d 1054; Hudson v. Browning, 264 Mo. 58, 174 S.W. 393; Wilt v. Hammond, 179 Mo.App. 406, 165 S.W. 362. (2) The court erred in not giving defendants' requested demurrer to the evidence because (a) there is no liability for nonfeasance as to a gratuitous agency and (b) plaintiff cannot hold defendants liable for damage which he could have prevented by the slightest attention to his own interests. (a) Defendants cannot be held liable for mere nonfeasance. 13 C. J., p. 317; McCormack v. Arizona Central Bank, 5 Ariz. 278, 52 P. 469; Denver Pressed Brick Co. v. Le Fevre, 25 Colo.App. 304, 308, 138 P. 434; Ridgway v. Graves, 21 N.Y.S. 934; Marshall v. Ferguson, 94 Mo.App. 175, 67 S.W. 935; Kaw Brick Co. Hogsett & Woodward, 73 Mo.App. 432; 3 C. J. S., p. 32, sec. 151. (b) Plaintiff cannot recover for damages which were preventable by the exercise of reasonable diligence and attention to his own interests. Restatement of the Law of Contracts, Sec. 336, p. 535; United States Bond & Mortgage Corp. v. Berry (Ky.), 61 S.W.2d 293; Haysler v. Owen, 61 Mo. 270, 274; Niehaus v. Gillanders (Mo. App.), 184 S.W. 949; Uhlig v. Barnum, 43 Neb. 584; Frick Co. v. Falk, 50 Kans. 644, 32 P. 360; Carson v. Bunting, 154 N.C. 530, 70 S.E. 923; Fulton v. Canno, 22 N.Y. 189, 118 N.E. 633; Loomer v. Thomas, 38 Neb. 277, 56 N.W. 973. (3) The court erred in giving of its own motion finding of fact 8 to the effect that (a) defendants held themselves out to the plaintiff as performing the service of converting bonds and (b) the plaintiff was entitled to rely upon the performance of a promise without checking to see whether it had been done. (4) The court erred in refusing each of defendants' requested dclarations of law numbered 3, 6, 8, and 14 and in so doing the court erroneously ruled (a) that detriment resulting solely from breach of a promise constituted consideration, (b) that plaintiff was not charged with notice of the conversion date stated in the bonds, (c) that plaintiff could recover notwithstanding failure to protect his own interests, and (d) that defendants were liable for nonfeasance notwithstanding they had not received the bonds nor entered upon the performance of the promise to convert. See authorities under points (1) and (2).

Alpha N. Brown for respondent.

(1) The first amended petition stated a good cause of action. Secs. 916, 935, 940, 970, 973, R. S. Mo. 1939; Weaver v. Harland, 48 Mo.App. 319, 323; Wetmore v. Crouch, 150 Mo. 671, 51 S.W. 738, 741; Henneke v. Stack (Mo. App.), 101 S.W.2d 743, 748; 12 C. J. S., p. 261, subsec. a; Coggin v. Burson (Texas), 70 S.W.2d 338; Martin v. Roberts, 36 F. 213, 220; Levite v. Miller, 64 Mo.App. 147, 150; Hawkins v. Paeben, 332 Mo. 479, 58 S.W.2d 437, 438. The petition will be taken to have been amended by the proof where the omission of a required allegation could have been inserted by amendment without changing nature of cause of action. State ex rel. v. Hostetter, 346 Mo. 249, 140 S.W.2d 21, 23; Lewis v. Railroad (Mo. App.), 61 S.W.2d 234, 235; Robinson v. Pub. Service Co., 345 Mo. 764, 137 S.W.2d 548, 554. This case involves the relation of principal and broker agent. Calighues v. Jones, 129 U.S. 193, 198; Ernst v. Miller, 293, N.Y.S. 818; Crowell v. Cohen et al., 268 N.Y.S. 329, 333; Hippenmeyer v. Halsey Stuart & Co. (Mo. App.), 112 S.W.2d 882 (a similar case to the case at bar). Mutual profit and accommodation of and to a business forms a good consideration, although the particular transaction may be recognized as a gratuitous favor. Dyas v. Hanson, 14 Mo.App. 363. Inconvenience or damage to promisee is also "a sufficient consideration." Little Rock Sur. Co. v. Bowers (Mo. App.), 42 S.W.2d 367; Rice v. Ins. Co., 231 Mo.App. 560, 102 S.W.2d 147; Hackett v. Dennison, 223 Mo.App. 1213, 19 S.W.2d 541; Thompson v. McCune, 333 Mo. 758, 63 S.W.2d 41; Duvall v. Duncan, 341 Mo. 1129, 111 S.W.2d 89. (b) Defendants' assertion that the amended petition failed to allege a "mutually binding agreement" is not well taken. What constitutes the relation of principal and broker agent. 9 C. J. 534, 516, 528, 556, 665, 520. Defendants' contention of lack of mutuality means lack of consideration. Ullman v. Bee Hive Dept. Store (Wis.), 214 N.W. 349, 350; Canton v. B. & O. Rd. Co. (Md.), 29 A. 821; Pittsburgh V. P. & B. Co. v. Bailey (Kan.), 90 P. 803; 9 Cyc. 334; Aden v. Dalton, 341 Mo. 454, 107 S.W.2d 1070, 1073; Warren v. Ray County Coal Co., 200 Mo.App. 442, 207 S.W. 883; In re Cowan's Estate, 13 N.Y.S. (2d) 374, 376. Contracts of sale differ from agency contracts. Beebe v. Columbia Axle Co. (Mo. App.), 233 Mo.App. 212, 117 S.W.2d 624, 631. (2) The trial court did not err in refusing defendants' demurrer or peremptory instruction because as contended by defendants, under thier point (a), "there is no liability for nonfeasance as to a gratuitous agency." Martin et al. v. Roberts, 36 F. 213, 220. See also cases cited under point (1), implied consideration (b) General profits and advantages of business is a good consideration, even though the particular transaction was recognized as gratuitous. Dyas v. Hanson, 14 Mo.App. 363. (c) Inconvenience or damage to promisee is a sufficient consideration. Little Rock Sur. Co. v. Bowers (Mo. App.), 42 S.W.2d 367. (d) Defendants are estopped to assert lack of consideration. Miller v. Chicago & Alton R. R. Co., 62 Mo.App. 252, 258; McFarland v. McFarland, 278 Mo. 1, 211 S.W. 23, 27, 28; Rhodus v. Geatley, 347 Mo. 397, 147 S.W.2d 631. (e) Even if defendants were a gratuitous agent, they are liable because they had undertaken performance of the service of conversion. The evidence shows they entered upon the service. If they were not willing to perform the service, they should have declined at the time to serve. Kaw Brick Co. v. Hogsett & Woodward, 73 Mo.App. 432, 437, and cases therein cited. (f) Defendants say the case at bar "is a clear case of misfeasance without the slightest element of nonfeasance," and by this admission state themselves out of court on the assignment of nonfeasance, for the law is clear and well settled that even a gratuitous promisor will be held liable for misfeasance. Kaw Brick Co. v. Hogsett & Woodward, 73 Mo.App. 432, 438; 2 Bouvier's Law Dictionary (Rawles Third Ed.), p. 2224; 12 C. J. S. (Brokers), p. 36, sec. 157. (g) Even a gratuitous mandatory must act with "due diligence and attention to the trust reposed in them." Eddy, Jameson & Co. v. Livingston, Kincaid & Co., 35 Mo. 487. Defendants' assignment under their point (b) that the alleged negligence of plaintiff was ground for giving their demurrer or peremptory instruction is likewise not well taken. Findings of fact, No. VIII, by the trial court, supported by evidence, settles this assignment adversely to defendants and is conclusive on this court. Hill v. Staley (Mo. App.), 153 S.W.2d 813, 815. In addition there was no evidence to support defendants' charge that plaintiff's "loss was preventable by the exercise of reasonable diligence and attention to his own interest." Such was not even pleaded in defendants' answer, as a defense. The fact that defendants did not offer any evidence on their behalf, or even call Mr. Doyle, who was in Kansas City and available as a witness, is significant, and entitles plaintiff to the conclusion that their evidence, if offered, would have been unfavorable or adverse to them. McInnis v. St. Louis-Southern, 341 Mo. 677, 108 S.W.2d 113, 115. (3) Finding of Fact VIII, by learned trial court, was proper, there being evidence to support the same, and in fact no evidence to the contrary. Such finding of fact is in the province of the trial court and, being supported by evidence, is conclusive. Hill v. Staley (Mo. App.), 153 S.W.2d 813, 815. (4) The refusal of defendants' declarations of law, 3, 6, 8 and 14, by the trial court, was proper. See cases cited under points (1) and (2) of this brief.

OPINION

Cave, J.

This is an appeal from a judgment of the Circuit Court of Jackson County in favor of the plaintiff and against the defendants in the sum of $ 1319.48.

The petition alleged that the defendants are co-partners, doing business under the style and name of James E. Bennett & Company, and for many years had been doing business in Missouri and operating a brokerage office in Kansas City that plaintiff had been a customer and patron of defendants in the purchase and sale of stocks and bonds; that on or about July 17, 1936, he purchased through defendants, five $ 1000 ten year six per cent convertible bonds of the New York Central Railroad Company; that the bonds contained a written privilege that on or before May 10, 1937, they could be converted into common stock of the railroad company at $ 40 per share; that ". . . on or about April 1, 1937, plaintiff advised...