National Refining Co. v. Chandler

• Decision Date: 21 May 1934
• Docket Number: No. 18080.,18080.
• Citation: 71 S.W.2d 482
• Court: Missouri Court of Appeals
• Parties: NATIONAL REFINING CO. v. CHANDLER et al.

71 S.W.2d 482

NATIONAL REFINING CO. v. CHANDLER et al.

No. 18080.

Kansas City Court of Appeals. Missouri.

May 21, 1934.

Appeal from Circuit Court, Boone County; W. M. Dinwiddie, Judge.

"Not to be published in State Reports."

Action by the National Refining Company against R. L. Chandler and another, in which defendant first named filed a counterclaim. From an adverse judgment, plaintiff appeals. On motion to dismiss the appeal.

Appeal dismissed.

Russell E. Holloway, of Columbia, for appellant.

Clark, Boggs, Cave & Peterson and Harvey T. Limerick, Jr., all of Columbia, for respondents.

PER CURIAM.

This action, arising in a justice court, was brought against the defendant R. L. Chandler, an agent of plaintiff's in the operation of one of its filling stations, for the balance due on certain goods delivered to him by plaintiff on consignment, and against the defendant C. W. Chandler, as the guarantor of his co-defendant.

There was a formal petition filed in the justice court, praying for a judgment in the sum of $67.18, to which the defendant C. W. Chandler filed a general denial. The defendant R. L. Chandler filed a general denial and a counterclaim asking damages in the sum of $100 for his wrongful discharge by the plaintiff.

The court directed a verdict for the defendant C. W. Chandler. The jury found for the plaintiff and against the defendant R. L. Chandler in the full amount of its claim, but allowed said defendant $100 on his counterclaim. This resulted in a judgment in favor of the defendant R. L. Chandler for $32.82. Plaintiff has appealed.

Respondents have filed a motion to dismiss the appeal, which we think must be sustained. While one of the points raised by plaintiff in its brief is that the court erred in failing to give plaintiff's peremptory instruction, at the close of all the evidence, as to the counterclaim of the defendant R. L. Chandler, the statement contained in plaintiff's brief sets forth the testimony in its most favorable light to it, wholly ignoring the testimony favorable to the defendant R. L. Chandler. Under such circumstances, plaintiff has violated our rule 16, which provides for a clear and concise statement of the case without argument, reference to the issues of law, or repetition of testimony of witnesses. Marks v. Acme Phonograph Co. (Mo. App.) 236 S. W. 900. In addition to this, the testimony is not set forth in the abstract or bill of exceptions, either in hæc verba or in narrative form, the bill of exceptions merely containing plaintiff's version of the testimony. See Jackson v. Wabash Ry. Co., 85 Mo. App. 443, 447, 448; Goodson v. Wabash, S. L. & P. Ry. Co., 23 Mo. App. 76, 82.

The assignment of errors in plaintiff's brief is as follows:

"Assignment of Errors.

"A. Refusal of the Court to permit plaintiff to introduce evidence showing the improper manner in which the defendant, R. L. Chandler, conducted the filling station.

"B. Refusal to grant plaintiff's peremptory instruction directing verdict in favor of plaintiff at close of all the evidence on defendant's counterclaim.

"C. Admission of evidence to prove a clause repugnant and contrary to another clause which is first in the contract.

"D. Refusal of the Court to grant plaintiff's instruction E.

"E. Refusal of the Court to grant plaintiff's instruction F.

"F. The Court erred in granting defendant's instruction Five.

"G. The Court erred in permitting defendant's counterclaim to go to the jury.

"H. The Court erred in refusing to admit Exhibit A, the instrument of guaranty in evidence.

"I. The Court erred in refusing to sustain plaintiff's motion for new trial."

This is followed by a heading "Points and Authorities," under which is a statement of nine abstract propositions of law, none of which are directly connected with the assignment of errors, and those that can be connected by inference throw no light upon such assignments. After the "Points and Authorities" appears the heading "Argument," under which some, but not all, of the...