National Cash Register Co. v. Kay

• Decision Date: 07 April 1936
• Citation: 93 S.W.2d 260,230 Mo.App. 1046
• Parties: NATIONAL CASH REGISTER COMPANY, RESPONDENT, v. LOUIS KAY AND ALFRED KAY, CO-PARTNERS, DOING BUSINESS AS KAY'S DEPARTMENT STORE; LOUIS KAY, APPELLANT (DEFENDANTS)
• Court: Missouri Court of Appeals

93 S.W.2d 260

230 Mo.App. 1046

NATIONAL CASH REGISTER COMPANY, RESPONDENT, v. LOUIS KAY AND ALFRED KAY, CO-PARTNERS, DOING BUSINESS AS KAY'S DEPARTMENT STORE; LOUIS KAY, APPELLANT (DEFENDANTS)

Court of Appeals of Missouri, St. Louis

April 7, 1936

Appeal from the Circuit Court of Jefferson County.--Hon. E. M Dearing, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Terry Terry & Terry for defendant and appellant, Louis Kay.

(1) The court should have given the instruction in the nature of a demurrer at the close of plaintiff's case and again at the close of the whole case for the reasons: (a) There is no cause of action stated in plaintiff's amended petition. (1) It purports to be an action on a note and chattel mortgage; no note, chattel mortgage or copy of either was filed with the amended petition. No sale alleged on the chattel mortgage. (2) No offer of refund was alleged. R. S. Mo. 1929, secs. 815, 3126. (b) For the reason that there was no chattel mortgage and no note introduced in evidence and no evidence that there had been any chattel mortgage or note signed by appellant. R. S. Mo. 1929, sec. 815; Webster et al. v. Blount et al., 39 Mo. 500, l. c. 501; Arkla Lumber & Mfg. Co. v. Quellmalz Lumber & Mfg. Co., 252 S.W. 961, l c. 967. (c) The conditional sales contract introduced in evidence showed that no property had passed to defendants or either of them, but the whole title to the property remained in plaintiff at all times, and no proof of refund as provided by the Missouri law was introduced. (See Abstract, page 37, Conditional Sales Contract.) R. S. Mo. 1929, sec. 3126. (d) It would be inconsistent to permit plaintiff to recover against one partner and principal when there was no finding against the other partner who did all the talking, and if injuries were done to the plaintiff he alone did it. (e) Because plaintiff's amended petition was such departure as prevents recovery in this case. Purdy v. Pfaff, 104 Mo.App. 331, l. c. 339 and 340; Webster et al. v. Blount et al., 39 Mo. 500, l. c 501; Arkla Lumber & Mfg. Co. v. Quellmalz Lumber & Mfg. Co., 252 S.W. 961, l. c. 967. (f) When the amendment is made at a term subsequent to the return term it will relate back to the proper return day. Webster et al. v. Blount et al., 39 Mo. 500, l. c. 501. (g) The amended petition attempts to join a cause of action on a conditional sales contract with one on note and chattel mortgage. (2) The demurrer to the evidence should have been sustained. The court permitted the plaintiff to file an amended petition which was a departure from the cause of action attempted to be pleaded in the original petition. Purdy v. Pfaff, 104 Mo.App. 331, l. c. 339-340; Webster et al. v. Blount et al., 39 Mo. 500, l. c. 501; Arkla Lumber & Mfg. Co. v. Quellmalz Lumber & Mfg. Co., 252 S.W. 961, l. c. 967. (3) Instruction No. 1 given on behalf of plaintiff is erroneous: (a) Because there is no evidence to support it, to-wit: No note or chattel mortgage introduced, and the conditional sales contract conclusively shows that it was solely one of conditional sale that requires refund to be offered. Section 3126, R. S. Mo. 1929. (b) Because the proof shows that if plaintiff had any cause of action it was one on conditional sales contract, and the plaintiff failed and refused to return seventy-five per cent of the $ 145 in cash that was paid it at the time it took and kept possession of the cash register. Section 3126, R. S. Mo. 1929. (c) It attempts to permit plaintiff to recover on both a conditional sales contract and a note and chattel mortgage in the same count. (d) It is a comment on the evidence. (e) It is long, cumbersome, confusing; assumes facts not in issue and not proved. (f) It seeks to cover the whole case. Quinn v. Van Raalte, 276 Mo. 71, l. c. 100. (g) It allows the jury to determine questions of law. (4) The verdict should always be responsive to and cover all of the issues submitted and should make a finding as to all the parties. Easton v. Collier, 1 Mo. 421; Dailey v Columbia et al., 122 Mo.App. 21, l. c. 24; Winkelman v. Maddox, 119 Mo.App. 658, l. c. 661; Schweickhardt v. St. Louis, 2 Mo.App. 571, l. c. 584; Miller v. Bryden, 34 Mo.App. 602, l. c. 608-609; Eichelman v. Weiss, 7 Mo.App. 87, l. c. 89; Ferguson v. Thacher, 79 Mo. 511, l. c. 514; Hughey v. Eyssell, 167 Mo.App. 563, l. c. 565; Proctor v. Garman, 203 Mo.App. 106, l. c. 109. (5) Under the Revised Statutes of Missouri in an action on a certain sum of money against three defendants where two of them filed a counterclaim, the verdict of the jury in favor of the plaintiff which did not contain a finding for or against the counterclaim was error. Winkelman v. Maddox, 119 Mo.App. 658, l. c. 661-662; Proctor v. Garman, 203 Mo.App. 106, l. c. 109; Hughey v. Eyssell, 167 Mo.App. 563, l. c. 565. (6) The verdict of a jury in cases where there were more than one defendant and where the jury finds for or against less than all of them without any finding for or against the other defendants is error. Winkelman v. Maddox, 119 Mo.App. 658, l. c. 661; Schweickhardt v. St. Louis, 2 Mo.App. 571, l. c. 584; Miller v. Bryden, 34 Mo.App. 602, l. c. 608; Eichelmann v. Weiss, 7 Mo.App. 87, l. c. 89; Ferguson v. Thacher, 79 Mo. 511, l. c. 514; Hughey v. Eyssell, 167 Mo.App. 563, l. c. 565; Proctor v. Garman, 203 Mo.App. 106, l. c. 109. (7) Judgment must conform with the verdict. Newton v. Railroad, 168 Mo.App. 199, l. c. 203; Keyes v. C. B. & Q. Railroad, 326 Mo. 236, l. c. 248.

Sheridan, Sheridan & Robertson and Hugh D. McCorkle for respondent.

(1) A suit for the price of an article sold with reservation of the title in the seller is an election which waives the reserved title since such a suit can be maintained only on the theory that the title has passed to the borrower. Estrich Installments Sales, No. 317; American Law Book Co. v. Brewer, 213 S.W. 881. The contract here reaches beyond the passing of the title and makes the whole purchase price become due and payable if the installments maturing on the note (secured by mortgage) are not paid. Hence, seller had the right to elect whether he would sue on the contract or on the note. (2) If the amendment is merely the same matter more fully or differently laid to meet the possible scope of the testimony, it is not a change of the cause of action. Bick v. Vaughn, 140 Mo.App. 595, l. c. 601; Rippee v. K. C., Ft. Scott & etc., Ry., 154 Mo. 1, l. c. 364; State ex rel. v. Bourne, 151 Mo.App. 104, l. c. 115; Stewart v. Van Horne, 91 Mo. App., l. c. 655. (3) The variation between the petition and the amended petition relative to the status or relations of the parties defendant did not change the cause of action. (a) Because it was immaterial to the right of recovery. Sec. 961, R. S. Mo. 1929; Laumeier v. Dolph, 145 Mo.App. 78, 171 Mo.App. 81. (b) Because it was permissible. Reifshneider v. Beck, 148 Mo.App. 725; Counts v. Thomas, 63 S.W.2d 416; Given v. Spalding Cloak Co., 63 S.W.2d 819. (4) When it is apparent upon viewing the form and language of the verdict in the light of the pleadings and the proof that the jury did consider and pass upon all the issues, where from the whole record the conclusion is irresistible that the jury did consider and determine all the issues presented by the pleadings, the verdict is good although it does not specifically mention each issue. Cogsgrove v. Stange, 194 Mo.App. 14; Nowell v. Mode, 132 Mo.App. 232; Dement v. McNail, 4 S.W.2d 831, 833; Hughes v. Miss. Riv. & Bonne Terre Ry., 309 Mo. 584; State v. Turpin, 62 S.W.2d 945; United Iron Works v. Twin City Cream Co., 295 S.W. 109; Hollinghausen v. Ade, 289 Mo. 362. (5) Proof of admitted facts is not necessary. And points not properly reserved below, or where the error is not properly assigned above, will not be reviewed. Allen v. Purvis, 30 S.W.2d 196; Cowell v. Employers Indem. Corp., 34 S.W.2d 795; Williams v. St. L. Pub. Serv. Co., 73 S.W.2d 199; Marsters v. Bray, 85 S.W.2d 479; Matousek v. Bohemian & etc., Union, 192 Mo. 588; State ex rel. v. Maloney, 113 Mo. 367. Material allegations of petition which were not denied stood confessed. James v. Bailey-Reynolds Chandelier Co., 30 S.W.2d 118, 325 Mo. 1054; State ex rel. Shartel v. Skinker, 324 Mo. 955, 25 S.W.2d 472; State ex rel. Burton v. Montgomery, 316 Mo. 368, 291 S.W. 472.

BECKER, J. Hostetter, P. J., and McCullen, J., concur.

OPINION

BECKER, J.

Plaintiff corporation in its original petition sued the defendants, Louis Kay and Alfred Kay, as co-partners trading and doing business as Kay's Department Store, at Festus, Missouri, alleging a balance due plaintiff of $ 1270 on a sale by it and purchase by defendants of a cash register. The separate answer of the defendant Alfred Kay admits the corporate capacity of plaintiff and specifically denies that he and the defendant Louis Kay were partners, and admits that he signed the written instrument which formed the basis of the purchase and sale of the cash register, but that said signing was caused by the false, fraudulent, and untrue statements of plaintiff's agent to the effect that plaintiff's agent told him that Louis Kay (his father) had ordered the cash register in question and had instructed plaintiff's agent to tell him to sign an order for the cash register; that he did so and paid $ 45 in cash at the time of the signing of the contract, and $ 100 in cash on the arrival of the register, and agreed to execute notes for the balance of the purchase price, namely, $ 1200 in twenty-four monthly payments of $ 50 each, and turn over an old cash register on the basis of $ 70 credit therefor.

Further answering said defendant stated that under the terms of the written agreement the cash register did not become the property of either of the defendants but remained...