St. Louis Perfection Tire Company v. McKinney
| Decision Date | 04 December 1922 |
| Citation | 245 S.W. 1100,212 Mo.App. 355 |
| Parties | ST. LOUIS PERFECTION TIRE COMPANY, Appellant, v. HERMAN McKINNEY, J. H. ALTHOFF and W. H. REMMERT, Respondents |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Cole County.--Hon. John G. Slate Judge.
AFFIRMED.
Judgment affirmed.
Ira H Lohman for appellant.
D. W Peters for respondent.
This is a suit on account for an alleged unpaid balance for automobile tires sold and delivered to defendants under the terms of a written contract.
Plaintiff is a corporation duly organized and existing under the laws of the State of Delaware, with its office and principal place of business in the city of St. Louis Mo. The defendants are residents of Jefferson City, Mo.
The facts, as shown by the record, are that defendants Herman McKinney and J. H. Althoff became the owners of the Main Garage in Jefferson City, Mo., about June 10, 1920, and that they conducted the business as a partnership, under the name of the Main Garage, until about August 14, 1920, at which time McKinney sold his one-half interest therein to W. H. Remmert; that Remmert contracted and agreed with McKinney and Althoff to pay the indebtedness of the Main Garage then owing to plaintiff herein, amounting to the sum of $ 1915.15. Althoff and Remmert then conducted the business as partners under the firm name and style of Main Garage until sometime in December, 1920, when Althoff sold his interest to Remmert who continued the business under the same name and was so engaged up to the time of the trial of this suit.
On September 3, 1920, one T. A. Leonhardt, secretary and treasurer of plaintiff corporation, went to Jefferson City in company with J. M. Garner, a salesman for plaintiff who had been in Jefferson City on the day McKinney sold his interest to Remmert, and who testified that he had immediately communicated to Leonhardt the fact of the sale. And on the same day, in the office of the Main Garage, in the presence of Remmert, Leonhardt caused said Althoff to execute trade acceptances covering the indebtedness involved in this action, and which covers all of the merchandise sold to the Main Garage by plaintiff pursuant to a contract entered into on July 7, 1920. This contract, which is in evidence, among other things provided:
The evidence tends to show that at the time McKinney sold to Remmert, the value of tires and tubes of plaintiffs then on hand was in excess of the balance due and owing to plaintiff.
There is a dispute, as shown by the evidence, as to whether or not Leonhardt knew on September 3, 1920, that McKinney had sold his interest in the business to Remmert and whether on said day he transferred the stock on hand to the new partnership of Althoff and Remmert and accepted them as debtors in lieu of McKinney and Althoff, for the amount of the trade acceptances above mentioned. It is in evidence that Leonhardt on September 3, 1920, presented a contract similar to the one entered into between McKinney and Althoff, but Althoff and Remmert refused to sign it. The evidence shows that plaintiff corporation had never made demand on McKinney for the payment of the indebtedness involved, nor sought in any way to hold him liable therefor.
The record discloses that prior to the bringing of this action plaintiff had brought suit against Althoff and Remmert, based upon the trade acceptances made by them as above stated. The court sustained a demurrer therein as to Remmert, whereupon plaintiff dismissed the suit. The petition, in the case at bar, charges that on various and sundry dates between March 11 and August 11, 1920, inclusive, plaintiff furnished and delivered to defendants McKinney and Althoff certain automobile tires and tubes of the value and for the price of $ 3296.01, particulars thereof being set forth in a bill of items attached thereto. The petition further alleges that the prices charged for same were reasonable and proper and that defendants promised and agreed to pay for same. Credits amounting to $ 1380.86, to which defendants are entitled, are mentioned in the petition. The balance due is alleged to be $ 1915.15.
Further it is charged in the petition that after the said merchandise was delivered to McKinney and Althoff, Herman McKinney, without knowledge of plaintiff, sold his interest in the Main Garage to W. H. Remmert; that by the terms of the contract of sale between said McKinney and said Remmert, entered into about August 15, 1920, said Remmert assumed and agreed to pay the said amount due plaintiff, and that by reason of the term of said contract, said Remmert is legally liable to plaintiff therefor.
The petition further alleges that on September 3, 1920, defendants Althoff and Remmert executed and delivered to plaintiff their three trade acceptances, by the terms of which they agreed to pay plaintiff on October 1, 1920, $ 555.05, $ 261.61 and $ 556.43; and that on October 5, 1920, they did give their check for $ 528.60, which trade acceptance and check were given to cover the amount herein sued upon, but which have not been paid, and which plaintiff, in the petition, offered to surrender.
Defendants McKinney and Remmert each filed a general denial but Althoff filed no answer, and made no defense. At the close of the evidence defendant Remmert asked a peremptory instruction in the nature of a demurrer to the evidence which was given by the court and the jury returned a verdict accordingly. Thereupon defendant McKinney asked a peremptory instruction in his behalf which the court refused. The court also refused to submit to the jury instruction No. 5 for plaintiff, as follows: "The court instructs the jury that the giving of the trade acceptances by the Main Garage to the plaintiff did not operate as a payment of plaintiff's account." But a modified instruction, No. 5, was given as follows: "The court instructs the jury that the giving of the trade acceptances by the Main Garage to the plaintiff did not necessarily operate as a payment of plaintiff's account."
The court also refused peremptory instructions (1) to find for plaintiff against all defendants, (2) against defendants Herbert McKinney and J. H. Althoff.
The verdict of the jury was in favor of defendant McKinnev and against plaintiff, but against defendant Althoff, and plaintiff's damages were assessed at $ 1915.15. Judgment was entered accordingly. In due time plaintiff filed its motion for a judgment against defendants Remmert and McKinney, non obstante veredicto, which was by the court overruled. Plaintiff appeals.
Our attention first is directed to the fact that the answers of defendants Remmert and McKinney are general denials. Plaintiff insists that error was committed by the trial court in admitting evidence to show the amount of stock on hand, and that Remmert took over the stock and assumed the indebtedness in an attempt to show a release of McKinney. In support of this charge of error it is insisted that payment is an affirmative defense and therefore not available under a general denial. It is further urged in this connection that a party cannot deny a sale, delivery and acceptance, and then in the same answer admit a sale and attempt an avoidance; also that waiver is an affirmative defense and must be specially pleaded.
We are not warranted in accepting these clear statements of the law as being other than general rules. In determining just what a general denial traverses we must be guided, to some extent at least, by what is pleaded in the petition. Here the petition alleges the sale of certain tires and tubes to defendants McKinney and Althoff; a balance of $ 1915.15, due; the sale of McKinney's interest to Remmert without notice thereof to plaintiff before payment of the balance was made; the assumption by Remmert of McKinney's liability to plaintiff; the liability of Remmert to plaintiff therefor; the execution of three trade acceptances and the giving of a check on September 3, 1920, by the new partnership of Althoff and Remmert to plaintiff in full satisfaction of said balance due; that neither the trade acceptances nor the check have been paid.
In the case at bar non-payment is a material fact and so pleaded in the petition. It was held in State ex rel. v Peterson, 142 Mo. 526, 532: "But in cases in which non-payment is a material fact necessary to constitute plaintiff's cause of action, it must be alleged in the petition and proved as a part of plaintiff's case, and defendant can controvert it, under general denial, by proof that payment was made." The rule as to...
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