Moherstadt v. Harry Newman Inc., Motor Cars

• Decision Date: 14 January 1920
• Docket Number: No. 2540.,2540.
• Parties: MOHERSTADT v. HARRY NEWMAN, Inc., MOTOR CARS.
• Court: Missouri Court of Appeals

217 S.W. 591

204 Mo. App. 619

MOHERSTADT v. HARRY NEWMAN, Inc., MOTOR CARS.

No. 2540.

Springfield Court of Appeals. Missouri.

January 14, 1920.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by E. C. Moherstadt against Harry Newman, Incorporated, Motor Cars. From a judgment for defendant, plaintiff appeals. Affirmed.

J. L. Fort, of Dexter, for appellant.

Wammack & Welborn, of Bloomfield, for respondent.

STURGIS, P. J.

The only question involved in this case relates to the jurisdiction of the trial court. The defendant is a corporation having its office and place of business in St. Louis, Mo. The plaintiff lives in Stoddard county, where he brought this suit and obtained service on defendant by summons sent to the sheriff of St. Louis and served there. The defendant appeared to the action in Stoddard county specially, and by proper plea raised the question of the jurisdiction of the court. The plaintiff claims that the suit was properly brought in Stoddard county because the cause of action accrued in that county. This claim is based on section 1754, R. S. 1909, which, provides that suits against corporations shall be commenced either in the county where the cause of action accrued or where such corporation shall have an office or agent. Defendant denies that the cause of action accrued in Stoddard county, and hence defendant could only be sued in St. Louis. The court found this issue for defendant, dismissed the case, and plaintiff has appealed.

The facts are not in dispute, and the issue is one of law. It stands admitted that defendant has no office, agent, or place of business in Stoddard county, but that its office and place of business was solely in St. Louis, where it was engaged in selling automobiles. The plaintiff, then and at all times mentioned a resident of Stoddard county, went to St. Louis, and there purchased of defendant an automobile, paying for same mostly in cash, but partly by delivering or trading to defendant a used automobile, owned by plaintiff, at an agreed price. The automobile so purchased by plaintiff was thus fully paid for, but it is alleged in the present suit, and this will be taken as true, that defendant then promised and agreed to pay plaintiff or his assignor of such contract the sum of $282 whenever the defendant sold the used car taken as part payment. This suit is for this $282, it being conceded that defendant has sold the used car. The gist of the action is that defendant at its place of business in St. Louis, for a sufficient consideration, promised to pay plaintiff $282, to be due and payable whenever it sold a certain used car and, such debt having matured by the sale of said car, defendant has and does refuse to make such payment. In making such promise by defendant nothing was said as to where the payment of the $282 should be made.

Where under these facts did plaintiff's cause of action accrue—in St. Louis, where the defendant resides and where the indebtedness was incurred, or in Stoddard county, where plaintiff/resides and where he was at the time the debt matured by defendant's sale of the used car? The plaintiff claims that the cause of action accrued in Stoddard county for these reasons:

I. It is the breach of the contract rather than the making of it that accrues the cause of action, and hence the place of the breach (or refusal to pay), rather than the place of making the contract, fixes the place where the cause of action accrues. As a general proposition, this is good law. Barnett, Haynes & Barnett v. Colonial Hotel Bldg. Co., 137 Mo. App. 636, 646, 119 S. W. 471; Brown v. Bach, 17 Utah, 435, 53 Pac. 991; Rippstein v. Ins. Co., 57 Mo. 86; Martin v. Ins. Co., 190 Mo. App. 703, 176 S. W. 269; Banker's Life Ass'n v. Shelton, 84 Mo. App. 634; Hosley v. Ins. Co., 86 Wis. 463, 57 N. W. 48; Bank v. Lacombe, 84 N. Y. 367, 38 Am. Rep. 518; Penn. L. M. F. Co. v. Meyer, 197 U. S. 407, 25 Sup. Ct. 483, 49 L. Ed. 810; Vaugh v. Weldon, Law Rep. 10 C. P. 47; Jackson v. Spittal, Law Rep. 5 C. P. 542. In Peak v. Harvester Co., 194 Mo. App. 128, 131, 186 S. W. 574, 575, this court said:

"The cause of action sued on, however, is based on and has to do with the breach of the contract rather than its making. The cause of action accrued, therefore, at the place of its breach. It is the performance of the contract which was breached, and, obviously, the place of the performance, rather than the place of the making, determines the place of the breach."

In Maxwell v. Railroad Co. (C. C.) 34 Fed. 286, the court said:

"I am clearly of the opinion that the cause of action arises, not where the contract is made, but where it is broken; and that, as the expulsion of the plaintiff took place in Kansas, the cause of action must be deemed to have arisen there."

II. Where an agreement to pay is made and no place of payment is mentioned, the debt is payable where the creditor resides. The debtor in such a case must seek the creditor and make payment where the creditor resides or may be found. This also is the general rule of law. 30 Cyc. 1185; 21 R. C. L. 15; Dameron v. Belt, 3 Mo. 213; Hale v. Patton, 60 N. Y. 236, 19 Am. Rep. 168; Dockhan v. Smith, 113 Mass. 320, 18 Am. Rep. 495.

Combining the above two propositions, the plaintiff says: (1) The defendant's promise to pay, though made in St. Louis, fixed no place of payment, and the place of payment was therefore the residence of the plaintiff in Stoddard county; (2) that defendant was obligated to seek plaintiff in Stoddard county and make payment there; (3) that its refusal to do so constituted a breach of the contract, and this breach occurred in Stoddard county; (4) that the breach of the contract is the accrual of the cause of action, and, such breach and accrual being the place of payment in Stoddard county, such is the proper venue of this suit.

However logical this may seem on first impression, we find no case going to the full length contended for by plaintiff. While a number of cases dealing with the place of the accrual of the cause of action as fixing the proper venue have held that the place of the breach of the contract rather than the place of its making is the...