Rossen v. Rice

• Decision Date: 05 November 1935
• Docket Number: No. 23179.,23179.
• Citation: 87 S.W.2d 213
• Parties: JOSEPH J. ROSSEN, APPELLANT, v. FRANK S. RICE, RESPONDENT.
• Court: Missouri Court of Appeals

87 S.W.2d 213

JOSEPH J. ROSSEN, APPELLANT, v. FRANK S. RICE, RESPONDENT.

No. 23179.

St. Louis Court of Appeals. Missouri.

Opinion filed November 5, 1935.

Motion for rehearing overruled November 19, 1935.

Appeal from Circuit Court of St. Louis County. — Hon. Julius R. Nolte, Judge.

REVERSED AND REMANDED.

Levinson, Boisseau & Levinson for appellant.

(1) The court erred in giving an instruction in the nature of a demurrer to the evidence on the second count of the petition at the close of plaintiff's case, and in requiring the jury to return a separate verdict on each count. (a) It is entirely proper for plaintiff to state his cause of action in different counts to meet different constructions of the evidence; and such counts do not constitute different causes of action. Brinkman v. Hunter, 73 Mo. 172; McCall v. Atchley, 164 S.W. 593; Lancaster v. Insurance Co., 92 Mo. 460, 5 S.W. 23; Rinard v. O.K. Railway Co., 164 Mo. 270, 64 S.W. 124; Lange v. New York Life Ins. Co., 162 S.W. 589; Dayton Folding Box Co. v. Dancinger, 161 Mo. App. 649, 143 S.W. 855; State ex rel. v. McKay, 30 S.W. (2d) 83; Great Western Coal Co. v. Chicago Great Western Railway Co., 98 Fed. 274. (b) "The verdict in such cases may be general. It need not mention either count." Lancaster v. Insurance Co., supra. (c) There was sufficient evidence to support the allegations of the second count. McFarland v. Melson et al., 20 S.W. (2d) 63. (d) The agreement alleged in the second count is not contrary to the Statute of Frauds. It was an original undertaking of the defendant. Brown et al. v. Brown, 47 Mo. 130; Hale v. Stuart, 76 Mo. 20; Winn v. Hillyer, 43 Mo. App. 139; Armstrong v. First National Bank, 195 S.W. 562; Wahl v. Cunningham, 6 S.W. (2d) 456; Robertson Bros. v. Garrison's Estate, 21 S.W. (2d) 202; Merton v. McMahon, 28 S.W. (2d) 456. (2) The court erred in admitting evidence on behalf of defendant of (a) Transactions on the part of a witness of which plaintiff had no knowledge and which were not binding on him. (b) Contracts made between the witness, Wise, and other persons who were strangers to the plaintiff. (c) A letter written by the witness, Wise, to the witness, Watson, purporting to release the latter from certain obligations. (3) The refusal of instruction B, requested by plaintiff, was error. (4) The giving of instruction No. 3, requested by defendant, was error.

Christy M. Farrar for respondent.

(1) (a) Where a cause is stated in two or more counts and there is no substantial evidence to sustain one of the counts the court, upon request, must withdraw that count from the jury by appropriate instruction, and the trial court did that as to plaintiff's second count. State v. McKay, 30 S.W. (2d), l.c. 89-91 (par. 10); Raming v. Metropolitan Ry. Co., 157 Mo., l.c. 484; Brown v. Stremple, 21 Mo. App. 338; Murphy v. Eagle Packet Co., 150 S.W. (2d) 754; Crossno v. Terminal R.R., 328 Mo. 423, 41 S.W. (2d) 796; Inman v. Freund Bread Co., 332 Mo. 461; Polkowski v. St. Louis Pub. S. Co., 68 S.W. (2d) 884. (b) The two counts of the petition are contradictory and nullify each other. Fatal inconsistency in counts not pleaded in the alternative permits the court to eliminate one count. State v. McKay, 30 S.W. (2d), l.c. 89; Crews v. Wilson, 312 Mo. 643, 281 S.W., l.c. 46; Behen v. Transit Co., 186 Mo., l.c. 439, 85 S.W. 346; Southworth Co. v. Lamb, 82 Mo., l.c. 247; Roberts v. Railway Co., 43 Mo. App., l.c. 289; Marx v. Marx, 89 Mo. App. 455; Enterprise Soap Works v. Sayers, 51 Mo. App., l.c. 314. (c) The addition of the second count in the amended petition constituted a departure and was a new and different cause of action and should have been stricken out by the trial court and this court. Sec. 819, R.S. of Mo. 1929; Boyd v. St. Louis Brewery, 318 Mo. 1206; Pruett v. Warren, 71 Mo. App. 84; Turner v. Ry., 76 Mo. 261; Williams v. Sanders, 69 Mo. App. 609; Broeker v. Packing Co., 101 Mo. App. 429; Sims v. Field, 24 Mo. App. 557. (d) There was no substantial evidence on the part of the plaintiff in support of his petition which was not self-evidently perjured or opposed to the writing in the case, and therefore instruction was properly given. Goldman v. Terminal R.R. Ass'n, 39 S.W. (2d) 801; Gregory v. Jenkins, 43 S.W. (2d) 877; Hardin v. Illinois Central R., 70 S.W. (2d) 1075; State ex rel. Savings Trust Co. v. Hallen, 165 Mo. App. 422. (e) Where testimony is offered by plaintiff inherently weak or contains contradictions or inconsistencies, a prima facie case is not made. Moon v. Brown, 172 Mo. App. 516. (f) The alleged guaranty was not in writing and is barred by the Statute of Frauds. Sec. 2967, R.S. of Mo. 1929; Wahl v. Cunningham, 6 S.W. (2d) 576; Realty Co. v. Zeretta, 296 S.W. 1057; Gansey v. Orr, 173 Mo. 532; Barker v. Scudder, 56 Mo. 272; Osborn v. Emory, 51 Mo. App., l.c. 413; Swarens v. Pfnisel & Amel, 26 S.W. 951, 324 Mo. 250; Davis v. Patrick, 141 U.S. 479, l.c. 487. (g) The agreements between plaintiff and defendant and Wise were reduced to writing and signed, and it is conclusively presumed that the whole engagement, the extent and manner was reduced to writing, and cannot be added to, varied, contradicted or altered by parol or extrinsic evidence. Hence there was no valid evidence before the court to support either the first or second count of the petition. Morgan v. Porter, 103 Mo. 135; Darlington L. Co. v. R.R., 243 Mo. 224; 22 Corpus Juris on Evidence, p 1070. (h) If there had been a valid guaranty by defendant it was discharged by plaintiff's agent Wise in releasing Watson's assumption of the mortgage. A guarantor is discharged by operation of law from further liability by any act on the part of the guarantee which extinguishes the principal contract. 28 Corpus Juris, p. 993, sec. 152; Citizens v. Evans, 176 Mo. App. 704; Rucher v. Robinson, 38 Mo. 154; Raleigh v. Moddle, 209 S.W. 958; Raleigh v. Woodward, 230 S.W. 674. (i) Usury under Missouri statute is taking interest directly in excess of eight per cent (8%). Secs. 2839-40-42, R.S. of Mo. 1929. (j) Proof upon trial that the party claiming any lien or pledge has received or exacted usurious interest shall render any pledge or lien whatsoever invalid. Sec. 2844, R.S. Mo. 1929. (k) If a note be void for usury, it cannot be enforced against a surety. On an illegal contract a surety incurs no liability. Childs on Guaranty & Suretyship, page 72, sec. 56; Gray's Extrs. v. Brown, 22 Ala. 262; Stockton v. Coleman, 39 Ind. 106; Heidenlein v. Mayer, 42 N.Y. Sup. Ct. 506. (2) Defendant's instruction No. 3 certainly stated the law correctly, as admitted by plaintiff's brief, and was certainly proper in view of the allegations by plaintiff's petition and evidence; and, further, was necessary to keep the issues clear and the jury from being misled. Mesker v. Harper, 221 S.W. 407, 245 S.W. 1065; Bradley v. Meeks, 178 Mo. App. 238; Fuchs v. Leahy, 9 S.W. (2d) 897. (3) If upon a foreclosure of a deed of trust securing a note pledged the pledgee buys the real estate at the foreclosure sale, he takes title as trustee for the pledgor, and holds it subject to redemption by him. When the plaintiff bought the land at foreclosure sale it was substituted for the deed of trust. Schelp v. Nichols, 263 S.W. 1017; Schelp v. Nichols, 300 S.W. 1031; Dilbert v. D'Arcy, 248 Mo. 617; Union Trust Co. v. Haseltine, 200 Mass. 414; Colbrook on Coll., p. 330, sec. 183, 19 R.C.L. 522, secs. 322, 578, 391. (4) A demurrer should have been sustained on both counts of the petition and the evidence for the reason that the action was prematurely brought. Laclede Nat'l Bank v. Richardson, 156 Mo., l.c. 278; Greer v. Lafayette Bank, 128 Mo., l.c. 574.

HOSTETTER, P.J.

This suit was instituted in the Circuit Court of St. Louis County, on the 2nd day of September, 1932. It arose out of a transaction between plaintiff and defendant involving a second deed of trust on some real estate located on Lindell Boulevard in St. Louis City, the title to which was in the name of Rose A. Rice, sister of defendant.

The petition is in two counts, both being based upon the same transaction.

In the first count it is alleged that plaintiff on or about March 12, 1931, loaned to defendant the sum of $6,000, which defendant promised to repay to him six months thereafter with interest at six per cent and that defendant at said time delivered to plaintiff as security for the loan a principal promissory note for the sum of $7,000, due September 15, 1931, together with an interest note for the sum of $210, both signed by Rose A. Rice and secured by a second deed of trust on the Lindell Boulevard real estate; that Rose A. Rice was merely a "straw party" for the defendant and received none of the money loaned by the plaintiff, but that defendant received the entire amount; that said debt was not paid at maturity, for which judgment was asked.

In the second count it is alleged that on or about March 12, 1931, the defendant was the owner of the Lindell Boulevard tract, the title to which was in the name of Rose A. Rice, "straw party" for him; that the Lindell Boulevard property was encumbered with a first deed of trust upon which there was a balance due amounting to $41,000; that prior to said date defendant had agreed to trade the Lindell Boulevard property to one Watson, subject to the $41,000 first deed of trust, and also subject to a second deed of trust in the sum of $7,000, which defendant intended to place thereon, and, which Watson agreed to assume and pay; that on said date the defendant, through his agent, requested plaintiff to make him a loan of $6,000 and agreed to give plaintiff as security therefor the said deed of trust which was to be executed by defendant's "straw party," Rose A. Rice; that defendant promised and agreed with plaintiff that if said deed of trust was not paid when due and could not be collected out of the property covered by said deed of trust the defendant would repay the plaintiff the amount...