Miller v. O'Connell

• Decision Date: 05 December 1921
• Docket Number: No. 14146.,14146.
• Citation: 235 S.W. 137
• Parties: MILLER v. O'CONNELL.
• Court: Missouri Court of Appeals

235 S.W. 137

MILLER v. O'CONNELL.

No. 14146.

Kansas City Court of Appeals. Missouri.

December 5, 1921.

Error to Circuit Court, Chariton County; Fred Lamb, Judge.

"Not to be officially published."

Action by J. B. Miller against M. J. O'Connell. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Davis & Ashby, of Chillicothe, for plaintiff in error.

H. J. West, of Brookfield, for defendant in error.

ARNOLD, J.

This is a suit against the guarantor of a promissory note.

The note in question is dated August 10, 1917, and was executed by H. B. Van Hooser and Mamie F. Van Hooser in the sum of $3,000, made payable to defendant, M. J. O'Connell, or order, with 6 per cent. interest from date, payable annually, and if said note or any part thereof should be collected by legal process an additional 10 per cent. of the amount then due would be payable as attorney's fee. Before maturity, said note was indorsed by defendant and delivered to plaintiff, and the petition alleges that, by the terms of the indorsement on the back of said note, defendant guaranteed the payment thereof and waived protest, demand, and notice of nonpayment. Some credits had been entered on the note, and the prayer of the petition is for the unpaid balance, with interest and attorney's fee.

Defendant filed answer admitting the execution of the note by Van Hooser and, by way of affirmative defense and relief, states that the note was given to plaintiff as part payment for a tract of 160 acres of land in Vernon county, Mo., and was secured by a deed of trust on said land, and that said note and deed of trust were delivered to plaintiff, and charges that by reason of the negligent failure of plaintiff to take steps to collect said note, there was a depreciation in the selling value of the land, and charges fraudulent acts and conduct, of plaintiff in connection with the sale of the land. As a second count and further defense, he sets up a counterclaim and asks for damages in the sum of $5,700, based upon allegations of fraud and breach of warranty in the sale of a certain stock of merchandise which entered into the transaction.

Plaintiff filed no reply but, later, filed a motion to strike out portions of defendant's answer and counterclaim, which motion was sustained by the court. Defendant then was granted until the 1st day of January, 1920, to file an amended answer, but no amended answer ever was filed. The cause was tried November 19, 1920, before the court, a jury having been waived, and resulted in the following judgment:

"At this day this cause coming on for hearing and the parties answering ready for trial, a jury is waived and this cause submitted to the court, and the court after hearing the pleadings and evidence and after carefully considering the same, doth find that defendant is indebted to the plaintiff on note sued on in the sum of $2,056.01.

"Wherefore, it is ordered and adjudged by the court that plaintiff have judgment and recover of the defendant in the sum of $2,056.01, to gether with all the costs of this suit, with interest thereon at the rate of 6 per cent. from this date, and for all costs in this behalf, and execution issue therefor.

"It is further ordered by the court that an attorney's fee of $205.60 be allowed to be paid by defendant and execution issue therefor."

From this judgment defendant appeals and urges here that the court erred in failing to make a finding and render judgment on the counterclaim as pleaded...