Sides v. Mannino
| Decision Date | 13 June 1961 |
| Docket Number | No. 30664,30664 |
| Citation | 347 S.W.2d 391 |
| Parties | Harold R. SIDES, Plaintiff-Respondent, v. Tony MANNINO and Betty Mannino, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Rosenblum & Goldenhersh, Merle L. Silverstein, Clayton, for defendants-appellants.
Lloyd E. Eaker, Grantham, Eaker, Henry & Dempsey, Clayton, for plaintiff-respondent.
DOERNER, Commissioner.
This action was instituted by the plaintiff, the payee, on a promissory note executed by defendants. In addition to raising the defense of lack of consideration the defendants filed a counterclaim. Verdict and judgment below was for plaintiff in the sum of $4,246.75 on his cause of action, and in favor of plaintiff on defendants' counterclaim. In their appeal defendants raise no issue concerning the result reached on their counterclaim.
Plaintiff was engaged in the asphalt paving business under the name of Acme Asphalt Paving Company. In 1957, at the request of defendant Tony Mannino, plaintiff paved a parking lot on property owned by the defendants, located at 219 South Florissant Road, Ferguson, Missouri. Taking the view of the evidence most favorable to plaintiff, as we are required, it appears that under the oral agreement entered into plaintiff was to perform the work at the rate of $2.10 per square yard, and that after the job was completed, some time in the latter part of May, 1957, plaintiff presented the defendants a bill based upon the paving of an area of 1,526 square yards, plus a charge for extra rock defendant Mannino had requested for another purpose, or a total of $3,380.93. According to plaintiff, no objection was raised by defendants as to the amount of the bill, but it was not paid, and after some discussion, defendant Mannino requested plaintiff to prepare a note, to be due in 45 days, which he said he and his wife would sign. Plaintiff accordingly had his office girl prepare the note, took it to the home of defendants, and they both signed and delivered it to plaintiff. This note, introduced in evidence by the defendants, was for $3,380.93, dated November 18, 1957, and was payable to the order of plaintiff 45 days after date, together with interest from June 1, 1957 at the rate of 6% per annum.
After the first note fell due, and was not paid, plaintiff demanded payment. Defendant Mannino professed his then inability to pay, and it was agreed that defendants would execute a new note. Accordingly, plaintiff had his attorney prepare a second note to take the place of the first one. This note, introduced in evidence by the plaintiff, was likewise for $3,380.93, and was dated June 1, 1958. It was payable to the order of plaintiff one year after date, together with interest thereon at the rate of 6% per annum until maturity, and from maturity at the rate of 8% until paid, and provided that if not paid at maturity '* * * the undersigned further agrees to pay all costs of collecting, including a reasonable attorney's fee. * * *' Plaintiff took this note to the home of defendants, and after a discussion with them regarding the terms of the note, defendants signed it and delivered it to plaintiff. On the same occasion defendant Mannino gave plaintiff a check for $202.85 in payment of the interest due for the period from June 1, 1957 to June 1, 1958, as provided by the first note. Plaintiff testified that the second note was executed to take the place of the first note, and conceded that he had not returned the first note to defendants.
Defendants' evidence was that plaintiff had agreed to pave the parking lot for the total sum of $1,500; that they executed the first note because: (1) plaintiff stated he would file a mechanic's lien against their property if they did not do so; (2) plaintiff stated the 45 days term of the note would give them time to get together, refigure the job, 'and get the price down'; and (3), plaintiff stated he was going to borrow some money and needed the note for the security. As to the reason they executed the second note, defendant Mannino testified that plaintiff insisted that the $3380.93 was the price of the job. Questioned by his counsel, the following occurred:
'* * * Q. Did you say anything to him at that time about your ability to pay or not pay?
'A. It was too late. He done had me on the first note.
'Mr. Eaker: I'd like to object to that as being irrelevant and immaterial, if the Court please, as to his ability to pay at that particular time. He signed the note nad that's what this law suit is on.
'Mr. Silverstein: I think it's important as to why he signed the second note when we still have one----
'The Court: I'll sustain the objection.
'Mr. Silverstein: May I make an offer, your Honor?
(Thereupon the following occurred out of the hearing of the jury.)
Defendant stated that plaintiff did not return the first note, but he was never asked, and did not testify, on either direct or cross-examination, that he had demanded the return of the first note. However, when asked on cross-examination whether the second note had been signed by him to take the place of the first note, defendant answered,
At the close of plaintiff's evidence defendants orally moved for a directed verdict on the grounds that plaintiff's evidence showed that the second note was given without consideration and that plaintiff had therefore failed to make a prima facie case. That motion was overruled, and defendants then proceeded to introduce evidence. No motion for a directed verdict, oral or written, was filed at the close of all the evidence. However, after verdict the defendants did file a motion titled 'Defendants' Motion for Judgment or in the Alternative for a New Trial' in which they asked the court to enter judgment in their favor, notwithstanding the verdict, or in the alternative to grant them a new trial. The only pertinent grounds of that motion reads: 'Defendants' motion for judgment in their favor at the conclusion of the plaintiff's case should have been granted, since the plaintiff's case did not manifest sufficient evidence, as a matter of law, to make a case against defendants.' Defendants' first contention here is that 'The trial court erred in failing to sustain a motion for judgment in favor of appellants since the evidence below unequivocally showed that the promissory note involved was executed by appellants without consideration.'
Under the state of this record, the defendants are in no position to urge this point for the reason that they failed to file a motion for a directed verdict at the close of all the evidence, as required by Civil Rule 72.02 V.A.M.R., which superseded Section 510.290 RSMo 1949, V.A.M.S. Having proceeded to offer evidence after their motion for a directed verdict at the close of plaintiff's evidence was overruled, defendants thereby waived their right to complain of the court's action. Daniels v. Smith, Mo., 323 S.W.2d 705; Wilt v. Waterfield, Mo., 273 S.W.2d 290; Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601. And by failing to renew their motion for a directed verdict at the close of all the evidence, and offering instructions, the defendants, in effect, requested the court to submit the case to the jury and may not now raise the question of submissibility. Millar v. Berg, Mo., 316 S.W.2d 499; Lindsay v. McLaughlin, Mo.App., 311 S.W.2d 148. This is not a case where the defendant filed an insufficient or defective motion for a directed verdict at the close of all the evidence, as in Fletcher v. North Mehornay Furniture Co., 359 Mo. 607, 222 S.W.2d 789, or Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365. And see Millar v. Berg, supra. H...
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