Reeves v. Dictograph Products Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Bennick
• Citation: Reeves v. Dictograph Products Co., 147 S.W.2d 162 (Mo. App. 1941)
• Decision Date: 04 February 1941
• Docket Number: No. 25511.,25511.
• Parties: REEVES v. DICTOGRAPH PRODUCTS CO., Inc.

147 S.W.2d 162

REEVES v. DICTOGRAPH PRODUCTS CO., Inc.

No. 25511.

St. Louis Court of Appeals. Missouri.

February 4, 1941.

Rehearing Denied February 18, 1941.

Appeal from St. Louis Circuit Court; John W. Joynt, Judge.

"Not to be reported in State Reports."

Action by Earnest Reeves against the Dictograph Products Company, Inc., to recover for breach of written contract whereby plaintiff was employed as a representative of defendant to lease certain of defendant's equipment. From an adverse judgment, defendant appeals.

Affirmed.

Blumenfeld & Abrams and Harold J. Abrams, all of St. Louis, for appellant.

Francis R. Stout, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action growing out of an alleged breach of a written contract which was entered into between plaintiff and defendant, whereby plaintiff was employed as a representative of defendant to lease certain of the latter's radio equipment to various hospitals, institutions, and the like, and, in return for his services, was to receive one-half of the amount of all rentals paid.

It was alleged that after entering upon the services which he had agreed to render under such contract, plaintiff succeeded in leasing out certain of defendant's equipment, and that thereafter, in violation of the terms of the contract, and without plaintiff's consent, defendant wrongfully canceled said leases, causing plaintiff to lose his share of the rentals which would have otherwise accrued, and damaging him to the extent of $750, for which sum he prayed judgment against defendant.

For its answer, after admitting its corporate existence and the execution of the contract, defendant denied each and every other allegation contained in plaintiff's petition, and then alleged a breach of the contract by plaintiff himself in certain designated respects.

Further answering, defendant pleaded that it had theretofore made payments to plaintiff in full payment, settlement, accord, and satisfaction of his account with it under the contract; that one of such payments had been evidenced by its promissory note for the sum of $300.21; that it had offered to pay plaintiff the amount of such note prior to the institution of this action; and that upon his refusal to accept said sum, it had deposited the same in the registry of the court for his use and benefit, together with all costs which had accrued in the case up to the time of the deposit.

The prayer of the answer was that judgment be entered in plaintiff's favor for the sum of $300.21, and that all costs accruing subsequent to the time of the deposit be taxed against plaintiff.

From the time of the filing of defendant's answer during the February, 1939, Term, nothing seems to have been done in the case until at the April, 1939, Term, when the case was assigned to Division No. 9 of the court for trial.

When the case reached the trial room, defendant at once moved for judgment on the pleadings upon the ground that "defendant's answer heretofore filed contains a statement of new matter, and the plaintiff has failed to reply or demur thereto within the time prescribed by the rule or order of this court".

Such motion for judgment on the pleadings was overruled by the court in the expressed exercise of its discretionary power, and thereafter, by leave of court, but over defendant's objection and exception, plaintiff filed his reply in the following form: "Comes now the plaintiff and denies each and every allegation in defendant's answer contained, except such allegations as are admissions of allegations in plaintiff's petition; and plaintiff further denies each and every allegation of new matter in defendant's answer contained and again prays for judgment as prayed in plaintiff's petition."

Following the filing of the reply, defendant refiled its motion for judgment on the pleadings, which was again overruled by the court. Defendant elected to stand upon its motion, whereupon plaintiff waived a jury, and submitted his case to the court alone, which found in favor of plaintiff, and against defendant, in the sum of $750. Defendant's motion for a new trial was filed and overruled; and from the judgment which was entered in conformity with the court's finding, defendant's appeal to this court has followed in the usual course.

The case before us involves the questions of whether the court erred in overruling defendant's motion for judgment on the pleadings and in subsequently entering judgment for plaintiff according to the prayer of his petition.

The applicable statutes upon which defendant based its motion for judgment on the pleadings are Section 779, R.S.Mo.1929, Mo.St.Ann. § 779, p. 1030, which provides that "where the answer contains new matter, the plaintiff shall reply to such new matter within such time as the court by rule or otherwise shall require, denying generally or specifically the allegations controverted by him"; and Section 780, R.S.Mo.1929, Mo.St.Ann. § 780, p. 1034, which provides that "if the answer contain a statement of new matter, and the plaintiff fail to reply or demur thereto within the time prescribed by the rule or order of court, the defendant shall have such judgment as he is entitled to upon such...