Riss & Co. v. Wallace

• Citation: 171 S.W.2d 641,350 Mo. 1208
• Decision Date: 06 April 1943
• Docket Number: 38310
• Parties: Riss & Company, Inc., a Corporation, Defendant in Error, v. J. L. Wallace, Plaintiff in Error
• Court: United States State Supreme Court of Missouri

171 S.W.2d 641

350 Mo. 1208

Riss & Company, Inc., a Corporation, Defendant in Error, v. J. L. Wallace, Plaintiff in Error

No. 38310

Supreme Court of Missouri

April 6, 1943

Rehearing Denied May 4, 1943.

Appeal from Jackson Circuit Court; Hon. John F. Cook Judge.

Affirmed as to first count, and reversed and remanded as to second count.

Homer A. Cope, Cope & Hadsell, L. V. Copley and Walter A Raymond for plaintiff in error.

(1) Defendant's counterclaim to Count I of plaintiff's petition states a valid cause of action and the court erred in striking it out. Lowery v. Kansas City, 85 S.W.2d 104; Boyer v. Garner, 15 S.W.2d 893. (2) The court erred in holding defendant's counterclaim to Count One of plaintiff's petition did not arise out of the contracts or transactions set forth in the petition as the plaintiff's cause of action and was not connected with the subject of the action. Sec. 929, R. S. 1939; Slack v. Whitney, 231 S.W. 1060; Collins v. John Pfingsten Leather Co., 190 S.W. 990; Turner v. Bank of Mountain View, 19 S.W.2d 19; McCormick Harvesting Mach. Co. v. Hill, 104 Mo.App. 544, 79 S.W. 745; Small v. Speece, 131 Mo.App. 513, 110 S.W. 7; Barnard v. Weaver, 224 S.W. 152; Howard v. Haas, 131 Mo.App. 507, 109 S.W. 1076; Graham Paper Co. v. Natl. Newspaper Assn., 193 S.W. 1003. (3) The court erred in sustaining plaintiff's motion to strike defendant's counterclaim to Count I of plaintiff's petition on the ground said counterclaim sought the enforcement of an illegal sale of an automobile without an assignment of the certificate of title as provided by our statutes. This counterclaim stated an action for fraud, an action independent of the sale contract and not seeking the enforcement thereof. Sec. 8382, R. S. 1939; Sawyer v. Walker, 204 Mo. 133, 102 S.W. 544; Smithpeter v Mid-State Motor Co., 74 S.W.2d 47; Messerli v. Bantrup, 216 S.W. 825; Thompson v. Lyons, 281 Mo. 430, 220 S.W. 942; Carr v. Swift, 170 S.W. 914; State ex rel. Boatman's Natl. Bank of St. Louis v. Webster Groves General Sewer Dist. No. 1 of St. Louis County, 37 S.W.2d 905; McDearmott v. Sedgwick, 140 Mo. 172, 39 S.W. 776. (4) The court erred in holding respondent who was solely responsible for the failure to deliver the title certificate to this motor equipment was entitled to defeat defendant's counterclaim because of such illegality. The parties were not in pari delicto and public policy requires that respondent be not permitted to profit by his own wrong. Witmer v. Nichols, 320 Mo. 663, 8 S.W.2d 63; Wenninger v. Mitchell, 139 Mo.App. 420, 122 S.W. 1130; Smith v. Holdoway Const. Co., 129 S.W.2d 894. (5) There was substantial evidence of the incorrectness of the alleged settlement and of defendant's refusal to accept the same as correct. The issues were therefore for the jury to determine. Pidcock v. Williams, 214 Mo.App. 248, 259 S.W. 899; Scott v. Parkview Realty & Improvement Co., 241 Mo. 112, 145 S.W. 48. (6) The court erred in holding that the alleged settlement between the plaintiff and defendant were conclusive as a matter of law, and in excluding competent evidence offered by the defendant of defendant's objection to such statements. Stewart v. St. Louis & S. Ry. Co., 157 Mo.App. 225, 137 S.W. 46; Quint v. Loth-Hoffman Clothing Co., 207 Mo.App. 391, 233 S.W. 92; Thomas E. Cole Lbr. Co. v. Crosby, 20 S.W.2d 552; Childs v. St. Louis Basket & Box Co., 271 S.W. 859. (7) The refusal of all the instructions requested by defendant amounted to a directed verdict for plaintiff. Scott v. American Zinc, Lead & Smelting Co., 187 Mo.App. 344, 173 S.W. 23; Salzman v. Athletic Tea Co., 236 S.W. 907. (8) The court erred in refusing defendant's requested Instruction E. Leonard v. United Rys. Co. of St. Louis, 239 S.W. 892; Da Pron v. Neu, 43 S.W.2d 915; H.F. Reis Lbr. & Material Co. v. Kobermann, 43 S.W.2d 894; Delametter v. Home Ins. Co., 233 Mo.App. 645, 126 S.W.2d 262. (9) The court erred in refusing defendant's requested Instruction F on the burden of proof. Berger v. St. Louis Storage & Comm. Co., 136 Mo.App. 36, 116 S.W. 444; Jackson v. Renken, 283 S.W. 729; Edling-Adcock Real Estate Co. v. Thompson, 153 Mo.App. 543, 134 S.W. 681; Mackler v. Barnert, 49 S.W.2d 244.

M. D. Campbell and M. D. Campbell, Jr., for defendant in error.

(1) It was the duty of plaintiff in error, hereinafter called defendant, to show in his abstract that there was a record entry reciting the fact of the filing of each pleading, the rendition of the judgment, and the filing of a motion for a new trial. Harding v. Bedoll, 202 Mo. 625; State ex rel. v. Victory House Owners Savs. & Loan Co. of America, 291 S.W. 1080. (2) The abstracts do not show that defendant was entitled to the writ of error. The writ of error was a new suit, and unless proper application was made therefor, it was improvidently issued and should be dismissed. Unless proper application for the writ was made, the court acquired no jurisdiction of the proceeding. Fidelity Trust Co. v. Tractor Co., 270 Mo. 487; Mills & Arnold Lbr. Co. v. Tanner, 271 S.W. 831. (3) The contract pleaded in the counterclaim was one of sale of the motor vehicles, a separate and distinct contract. The counterclaim does not allege any fact showing that the contract therein described was in any manner connected with the contracts alleged in the petition, hence the claim of error should not be sustained. Hoshaw v. Fenton, 110 S.W.2d 1040. (4) The statute is plain and clear in its terms. Both the buyer and seller of a motor vehicle are guilty of an unlawful act unless the assigned certificate of title "passes between the parties," "at the time" of the delivery of such vehicle. Both the plaintiff and the defendant entered into a "fraudulent and void" contract and both were guilty of a criminal offense. Sec. 8404, R. S. 1939, Par. "d;" State ex rel. v. Cox, 306 Mo. 537, 268 S.W. 87. (5) It has been ruled in this and other jurisdictions that, if the law will not aid either party to an illegal contract, it leaves the parties where it finds them. Rainer v. Western Union Tel. Co., 91 S.W.2d 202, and cases cited therein. (6) The acceptance of the several checks in payment of the amounts due as shown in the settlement sheets was conclusive on the parties. Caneer v. Kent, 119 S.W.2d 214. (7) Defendant in assignment of errors says plaintiff's Instructions 4 and 5 were erroneous. He is not in position to complain of these instructions for the reason he does not mention them in his Points and Authorities. Magers v. Northwestern Mut. Life Ins. Co., 152 S.W.2d 148; Kleinschmidt v. Globe Democrat Pub. Co., 165 S.W.2d 620. (8) When the defendant ceased operating the equipment was examined by Mr. Cameron for plaintiff and Mr. Dorothy for the defendant. They made a joint statement as to the condition of the several pieces of said equipment. Dorothy, for the defendant, testified that one of the trailers had been in a wreck and "had to be repaired." Defendant was obligated to make that repair and he failed to do so, he breached his contract and plaintiff was entitled to recover at least nominal damages. Instruction 5 directed recovering of nominal damages. Whether plaintiff was entitled to recover more was submitted in Instruction 4. Defendant in argument says he was not permitted to testify denying the correctness of Exhibit 20.

OPINION

Clark, J.

This case is here on writ of error from the circuit court of Jackson County. The judgment was for plaintiff and defendant sues out the writ. The parties will be hereafter referred to as plaintiff and defendant.

Plaintiff's amended petition, on which the case was tried, is in two counts, preceded by a paragraph stating that on April 30, 1937, the parties entered into certain contracts later described; then follows count one which states an ordinary claim in replevin for seven motor vehicles, alleging their value; that plaintiff is the owner and entitled to possession and defendant unlawfully detains them. In count two it is alleged that by the contract of April 30 plaintiff leased the motor equipment described in the first count to defendant on specified terms, and by separate written agreement employed defendant to use said equipment in hauling for plaintiff on terms and conditions set out; it is alleged that the contracts have been terminated, that defendant breached them by failing to return the equipment in good repair, to plaintiff's damage in the sum of $ 1,507.50 and by failing to pay for oil, gas and necessary repairs, to plaintiff's damage in the sum of $ 494.62, for which sums plaintiff asks judgment.

Defendant's answer to count one was a general denial, coupled with a counterclaim alleging: that on April 30, 1937, he entered into a contract to purchase from plaintiff certain equipment including that described in count one of plaintiff's petition for the sum of $ 10,233.50, on which he made a down payment and gave notes secured by chattel mortgage for the balance; that defendant has paid the full purchase price but, although frequent demands have been made, at the time of the contract and ever since plaintiff has "willfully, fraudulently and unlawfully failed to deliver to defendant certificates of title to said equipment, as required by law," and defendant asks actual damages in the sum of $ 8,750.00 and punitive damages in the further sum of $ 15,000.00. Defendant attached the contract of purchase to his answer as an exhibit. To count two defendant's answer is a general denial coupled with a counterclaim, alleging that on April 30, 1937, and thereafter, he entered into contract to purchase from plaintiff the equipment described in count one and to lease certain other equipment and plaintiff agreed to pay him a certain consideration for hauling; that plaintiff has unlawfully withheld from defendant money...