Mills v. Bell et al.

• Citation: 37 S.W.2d 680
• Decision Date: 06 April 1931
• Docket Number: No. 17014.,17014.
• Parties: JOHN P. MILLS ORGANIZATION, APPELLANT, v. JOHN S. BELL ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

37 S.W.2d 680

JOHN P. MILLS ORGANIZATION, APPELLANT, v. JOHN S. BELL ET AL., RESPONDENTS.

No. 17014.

Kansas City Court of Appeals. Missouri.

Opinion filed April 6, 1931.

Appeal from the Circuit Court of Howard County. — Hon. A.W. Walker, Judge.

AFFIRMED.

R.M. Bagby and F.P. Stapleton for respondents.

Roy McKittrick and Tyre W. Burton for appellant.

ARNOLD, J.

This is an action to recover on a bank check. The facts of record are that plaintiff is a corporation, organized under the laws of California, and engaged as selling agents of an addition to the City of San Diego, California, known as Azure Vista, located on Point Loma, San Diego, of which Pantages, Mills, Shreeve & Company are designated as sellers and the John P. Mills Organization, Inc., as selling agents.

Defendants, husband and wife, were residents of Fayette in Howard County, Missouri, and in March, 1928, were sojourning in Los Angeles, Calif. It appears plaintiffs promoted excursions to San Diego, with the purpose of exhibiting and selling lots in said Azure Vista. On March 1, 1928, defendants, accompanied one of these excursions at which one John P. Mills "made a talk" at the location, and defendants agreed to purchase Lot No. 17, Block M. Azure Vista, in the City of San Diego, for the price and sum of $7500. On said date, as down payment, defendants gave their check payable to John P. Mills Organization, Inc., for the sum of $1500, on the Commercial Trust Company of Fayette, Missouri. John P. Mills executed his receipt therefor in the nature of a proposal to sell. Defendant John B. Bell also signed the said receipt, or proposal, immediately beneath the last sentence therein, reading: "I agree to purchase said property on the above terms and conditions."

The terms and conditions named in the receipt were that the price for the lot was $7500, down payment $1500, the receipt of which was acknowledged and the remainder to be paid in semi-annual installments of $600, with interest. There were other provisions as to the improvements, grading, etc., not necessary to be here set out. The receipt was executed in duplicate, the original given to defendants and the duplicate retained by John P. Mills. At the same time, defendants signed a blank entitled "Agreement for the Sale of Real Estate." This paper was signed only by defendants and at that time was merely a blank form, the data as to this transaction not being in the body of the same. The check, duplicate receipt and said contract were turned over to John P. Mills on March 1, 1928, simultaneously. There is testimony to the effect the contract of sale was to be filled out on said day and mailed to plaintiff at Los Angeles for the signature of the sellers and be delivered to defendants the following day. The testimony is to the effect this agreement was verbal and made by John P. Mills. Plaintiff indorsed said check and deposited it in a Los Angeles bank for collection.

Defendants waited until the 5th day of March for delivery to them of the signed agreement of sale, then, becoming suspicious, wired the Commercial Trust Company at Fayette, Missouri, to stop payment of the check; and, at about the same time they sent plaintiff a letter calling off the deal, enclosing the receipt given them by John P. Mills, and asking return of their $1500 check. In due course, on March 8, 1928, the check was presented to the Commercial Trust Company at Fayette, Missouri, for payment, and was refused. The check was thereupon returned to plaintiff bearing the endorsement "Payment stopped." On order of the court plaintiff produced the receipt which had been returned to them, the duplicate thereof, and the agreement for sale of real estate, the latter being unsigned by plaintiff or the sellers. These documents were introduced in evidence by defendants, the original receipt being marked defendants' "Exhibit A," the contract defendant's "Exhibit B." and the duplicate receipt, defendant's "Exhibit C." On the face of both the duplicate receipt and the agreement was stamped in red ink the word "Cancelled." There is no testimony of record showing positively who placed said stamp thereon. Defendants testified they had not had the said instruments in their possession nor had they seen them since they turned them over to John P. Mills on March 1, 1928.

Defendant John B. Bell testified that after the transaction with Mills on March 1, 1928, he received no further communication of any kind or character from said Mills, the John P. Mills Organization, Inc., or Pantages, Mills, Shreeve & Co. Witness further testified he had no business with anyone other than Mills; that neither Mills, the John P. Mills Organization Inc., or Pantages, Mills, Shreeve & Co., ever at any time tendered to defendants the contract marked "Exhibit B," or made any offer to defendants concerning the same. This suit was instituted against defendants in Howard County, Missouri, and is bottomed upon the check.

The petition alleges plaintiff is a corporation organized and existing under the laws of the State of California, having capacity to sue and be sued; that on March 1, 1928, for value received, defendants made and executed their check described in the above statement of facts and "that thereafter and before the plaintiff (by) the use of reasonable diligence could present said check for payment the defendant notified said trust company not to pay the same. That on the 8th day of March, 1928, said check was presented for payment at said bank and payment thereof was by said bank refused because of the said act of the defendants in countermanding the same. That a verified copy of said check is herewith filed and marked exhibit A. The plaintiff states that no part of the said check has been paid, and the whole amount is now due and unpaid."

Judgment is asked in the sum of $1500, and interest from March 8, 1928, the date of presentation, and for costs. The answer admits the execution of the check, as described in the petition, but defendants "deny that said check was given for value received." And for further answer defendants say "that while it is true they executed said check and delivered it to the plaintiff at the time in said petition alleged, yet defendants say that said check was given to plaintiff by defendants wholly without consideration, and that the same is not, and never was, binding upon the defendants in the hands of the plaintiff."

The regular judge was disqualified of his own motion and the cause was tried to a special judge and a jury. Verdict and judgment were for defendants. Motions for a new trial and in arrest were overruled and plaintiff has appealed.

The first point urged is that the answer does not allege facts sufficient to constitute a defense. And in this connection it is argued the defendants, by their answer, undertook to set up the defense that the check was without consideration; but that they did not allege facts which, if proved, would destroy the presumption that the check was given for a valuable consideration. It is the law that a check is a negotiable instrument and imports a valuable consideration. [Nelson v. Diffendorffer, 178 Mo. App. 48, 51, 163 S.W. 271.] Yet this presumption may be overcome by competent evidence. It is also the law that a pleader is not required to plead his evidence in support of his allegations.

Plaintiff argues want of consideration is an affirmative defense and it was necessary for defendants herein to allege facts which, if proved, would authorize the jury to find for defendants. [Staley v. Ivory, 65 Mo. 74; School District v. Sheidley, 138 Mo. 672, 690, 40 S.W. 656.] The answer alleges "the said check was given to plaintiff by defendants wholly without consideration ..." It is observed there was no demurrer to the answer and no motion to make more definite and certain. We think the situation here presented is fully determined against plaintiff's contention in the case of Williams v. Mellon, 56 Mo. 262, wherein at page 263, NAPTON, J., speaking for the court said:

"This suit was on a promissory note, the petition being in the ordinary form and containing the usual allegations. The answer admits the execution of the note sued on, but avers and so charges the fact to be `that the said note was made without any consideration whatever.' On the trial, the defendant offered, in support of his plea, evidence to show that there was no consideration for the note; but this evidence was rejected, and the sufficiency of this answer presented the only point for consideration. The objection to the plea is, that it does not state facts which would avoid the implication arising from the execution of the note. But where it is averred that there was no consideration whatever for the note, it is not easy to see how a more specific allegation of the facts could be made. If the note was a mere voluntary obligation without...