Peoples Finance Corp. v. Buckner

• Decision Date: 15 March 1939
• Docket Number: 35510
• Citation: 126 S.W.2d 301,344 Mo. 347
• Parties: People's Finance Corporation v. Jennie C. Buckner, Executrix of Estate of George W. Buckner, Appellant
• Court: Missouri Supreme Court

126 S.W.2d 301

344 Mo. 347

People's Finance Corporation v. Jennie C. Buckner, Executrix of Estate of George W. Buckner, Appellant

No. 35510

Supreme Court of Missouri

March 15, 1939

Appeal from Circuit Court of City of St. Louis; Hon. J. W McAfee, Judge.

Affirmed.

Charles Perry Schafer for appellant.

(1) Whether there has been an abandonment of the contract is a question for the jury. Mertens v. McMahon, 28 S.W.2d 456; Creamery Package Mfg. Co. v. Sharples Co., 71 S.W. 1068, 98 Mo.App. 207; Fine v. Rogers, 15 Mo 315; McCurry v. Purgeson, 170 N.C. 463, 87 S.E. 244; Martin v. Spaulding, 40 Okla. 191, 137 P. 882. (2) Upon the facts alleged in the plaintiff's reply to counterclaim, the defendant was not guilty of abandonment of his contract as a matter of law. Josloff v Falbourn, 125 A. 349. (3) Whenever there are disputed facts, the trial court should leave the question for the determination of the jury. See Authorities under point 1.

Silas E. Garner and McLemore & Witherspoon for respondent.

(1) This court will review this case on the same theory on which it was tried in the nisi court. The counterclaim was bottomed on a written five-year contract. The defense to the counterclaim was that the contract as to certain commission provisions was abandoned from the beginning. Feil v. Wells, 282 S.W. 25; Snyder v. Amer. Car & Foundry Co., 14 S.W.2d 603; Rankin v. Gough, 6 S.W.2d 640. (2) The trial court took the position that defendant's evidence established the fact that Mr. Buckner never complied with the contract and never, at any time, took the benefits therein provided save only the $ 250. The burden was on defendant to establish her counter-claim, but when she, in an attempt to do so, established the defense which destroyed her claim, she was out as completely as if she had established contributory negligence in a personal injury suit bottomed on negligence. Creamery Package Mfg. Co. v. Sharples Co., 71 S.W. 1068; Chouteau v. Ironworks, 7 S.W. 467; Selligman v. Rodgers, 15 Mo. 315.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant's statement of the case, which we adopt, reads as follows:

"This is a suit which originated in the Probate Court of the City of St. Louis, Missouri, through a claim filed by the People's Finance Corporation against the estate of George W. Buckner, deceased, for $ 10,924.49, founded upon an account for money loaned to the deceased.

"Jennie C. Buckner, executrix of the estate of George W. Buckner deceased, filed a counterclaim to this claim, claiming that George W. Buckner entered into a contract with the People's Loan and Finance Company, predecessor to People's Finance Corporation, which provided among other things that the said Buckner was to receive a basic salary of $ 250 per month as general manager of said company; that said basic salary was to be increased $ 30 per month when the outstanding loans of said company amounted to $ 70,000, and an additional 3/10 of one per cent per month upon each thousand dollar increase of outstanding loans over $ 70,000, that the total outstanding loans of said company greatly exceeded $ 70,000, and as a result of said excess of loans outstanding, George W. Buckner became entitled under said contract to additional payments in the sum of $ 29,070. Thereupon, after motions to strike the counter-claim had been filed, the Probate Court allowed the claim of the claimant in the sum of $ 4,478.93 and awarded judgment to the counter-claimant of her counter-claim, after deducting $ 4,478.93, in the sum of $ 21,603.

"Whereupon, the People's Finance Corporation appealed the case to the St. Louis Circuit Court where a trial before a jury was had, resulting in an instructed verdict in favor of the plaintiff on its claim of $ 4,478.93, and an instruction given by the Court to the jury to find in favor of plaintiff on defendant's counter-claim. At this point the defendant asked and was granted leave to take an involuntary non-suit on the counter-claim, with leave to file a motion to set the same aside. Subsequently, defendant's motion for a new trial was filed and overruled and defendant's motion to set aside the non-suit and for a new trial of her counter-claim was overruled.

" To support her counter-claim, appellant offered in evidence a stipulation executed between her and the People's Finance Corporation, providing that the People's Loan and Finance Company did enter into a contract with George W. Buckner, a copy of which was attached, and that after the formation of the People's Finance Corporation George W. Buckner continued to act as manager, as he had with the People's Loan and Finance Company until on or about January 15, 1928; that the People's Finance Corporation admitted its liability for all the contracts and obligations entered into by its predecessor, the People's Loan and Finance Company, and that the amount of loans made by the company were set forth by months and years. She offered in evidence the employment contract."

It was agreed at the trial that the deceased owed the plaintiff corporation a balance of $ 4,478.93. Judgment was entered in plaintiff's favor for that amount. At the trial the question in dispute was over defendant's counterclaim. The question here now on appeal is, was the trial court justified in directing a verdict for plaintiff on the counterclaim? Defendant had the burden of proving her claim by a preponderance of the evidence. Respondent contended that the evidence introduced by the defendant showed that the deceased had breached his contract and did not consider it in force, and that therefore the directed verdict in plaintiff's favor was proper. The portions of the contract alleged to have been breached read as follows:

"First -- Party of the first...