Stalcup v. Bolt

• Decision Date: 04 April 1940
• Docket Number: No. 19578.,No. 19598.,19578.,19598.
• Citation: 139 S.W.2d 544
• Parties: H.J. STALCUP, RESPONDENT AND PLAINTIFF IN ERROR, v. BEN R. BOLT, APPELLANT AND DEFENDANT IN ERROR.
• Court: Missouri Court of Appeals

139 S.W.2d 544

H.J. STALCUP, RESPONDENT AND PLAINTIFF IN ERROR, v. BEN R. BOLT, APPELLANT AND DEFENDANT IN ERROR.

No. 19578.

No. 19598.

Kansas City Court of Appeals, Missouri.

April 4, 1940.

Appeal from the Circuit Court of Clay County. — Hon. James S. Rooney, Judge.

AFFIRMED.

L.E. Bates for appellant and defendant in error.

Endorsement of promissory note by payee is not essential to the validity of an assignment of the same. Carter v. Butler, 264 Mo. 306; Credit Alliance Corporation v. Bryan, 27 S.W. (2d) 411; Goodman v. Frew, 214 Mo. App. 642, 264 S.W. 34; First National Bank v. Elmer, 278 S.W. 826; Phillips v. Alford, 90 S.W. (2d) 1060, l.c. 1069.

Moore, Smith, Aughinbaugh & Ault and George T. Hinde for respondent and plaintiff in error.

(1) The court properly denied defendant's request for a directed verdict in his favor. (a) There was substantial evidence that plaintiff was the legal owner of the note sued on, and the controverted issues of fact were for the jury to determine. Gilliland v. Bondurant, 59 S.W. (2d) 679; Magee v. Hayden, 111 S.W. (2d) 239; Kenney v. Henson, 107 S.W. (2d) 947. (b) Plaintiff was the real party in interest and conclusively proved that fact by the note itself, showing that he was payee and in possession of it, and that he had never transferred, assigned or endorsed it. Sec. 2822, R.S. Mo., 1929; Pryibil v. Meyer, 153 Mo. App. 237; Huke v. Richard Wade Kelley Post, 13 S.W. (2d) 555; 8 C.J. 110, sec. 1316. (c) A holder of bare legal title to cause is entitled to sue thereon as real party in interest, though the beneficial ownership has been assigned to another. Kelley v. Indemnity Co., 7 S.W. (2d) 434; Barber v. Stroub, 111 Mo. App. 57; Florea v. Iowa Ins. Co., 32 S.W. (2d) 111; C.J.S., p. 99, sec. 660, subsec. d; Haddow v. St. Louis Pub. Serv., 38 S.W. (2d) 287; Contor v. Ins. Co., 285 S.W. 803. (2) The court did not err in giving plaintiff's Instruction No. (1). The defense of failure of consideration is an affirmative defense. (a) Plaintiff's instruction covers all matters essential to his cause of action, and matters relied on for defense by defendant were fully submitted by defendant's Instructions Nos. (3) and (4). Tuttle v. Chostner, 260 S.W. 819; Minteer, Williams & Minteer v. Jenkins, 229 S.W. 402; State ex rel. Jenkins v. Trimble, 236 S.W. 651; Rice v. Plattsburg-Vibbard, 229 S.W. 298; Tosh v. Kirshner, 248 S.W. 994; Emory v. Emory, 53 S.W. (2d) 908; Tyrer v. Moore, 250 S.W. 920; Cleft v. St. Louis-San Francisco Ry. Co., 9 S.W. (2d) 977. (b) Burden of proof was on defendant to prove failure of consideration. Secs. 2653 and 2958, R.S. Mo., 1929; Franklin Bank v. Inter. Hos. Co., 273 S.W. 197. (c) Defense of want of consideration is an affirmative defense. North Side Finance v. Sparr, 78 S.W. (2d) 892; Duvall v. Duncan, 111 S.W. (2d) 89; Thompson v. McCune, 63 S.W. (2d) 41; Farmers State Bank v. Barnes, 276 S.W. 93; Bank of Hollister v. White, 228 S.W. 841; Shawhan v. Shawhan Dis. Co., 195 Mo. App. 445. (3) Rescission of a contract must be timely, which means within a reasonable time to do the things necessary in order to rescind, not to deliberate on whether to rescind. Long v. Vending Mach. Co., 158 Mo. App. 662; Wayne Tank & Pump Co. v. Evans, 15 S.W. 895; Aeolian Co. v. Boyd, 65 S.W. (2d) 111; Manley v. Crescent Co., 103 Mo. App. 135; Tower v. Pauly, 51 Mo. App. 75; Viertel v. Smith, 55 Mo. App. 617. (4) The court erred in refusing to give the peremptory instruction requested by plaintiff at the close of all the evidence directing a verdict in his favor on the first count of defendant's counterclaim. (a) Defendant had no right to rescind at the time of the alleged rescission. Wayne Tank & Pump Co. v. Evans, 15 S.W. (2d) 895; Aeolian Co. of Mo. v. Boyd, 65 S.W. (2d) 111; Tower v. Pauley, 51 Mo. App. 75; Manley v. Crescent Nov. Co., 103 Mo. App. 135; Long v. Vending Mach. Co., 158 Mo. App. 662; Sterling Silver Mfg. Co. v. Worrell, 172 Mo. App. 90; Emery v. Boehmer Shoe Co., 167 Mo. App. 703; Metro Rub. Co. v. Monarch Rub. Co., 74 Mo. App. 266; Viertel v. Smith, 55 Mo. App. 617; Landon v. Tucker, 130 Mo. App. 704; Riverside Fibre & Paper Co. v. Benedict Paper Co., 201 S.W. 584; Bayer Steam Soot Blower Co. v. City of Milan, 199 S.W. 712. (b) Defendant had no right to make tender without also tendering at the same time a reasonable sum for its use over a period of nineteen months. Hess v. Ehrlich, 166 Mo. App. 636. (c) Where the buyer remains in possession of chattels without proof that other had superior title, no defense has been made. 24 R.C.L., sec. 569, Sales; Ed Maher, Inc. v. Morris et al. (Tex.), 67 S.W. (2d) 340; 55 C.J., sec. 965. (d) The evidence shows that defendant used the sign after his offer to rescind, and such use constitutes a waiver of his right to rescind. Aeolian Co. of Mo. v. Boyd, 55 S.W. (2d) 111. (5) The court erred in giving defendant's Instruction No. 2. The instruction improperly authorized the jury to find for defendant on undisputed evidence without taking into consideration the question of reasonable time to rescind. Johnson v. Whitman, 20 Mo. App. 100; Am. Vet. Legion v. Glinter, 59 S.W. (2d) 53; Morten Lbr. Co. v. Wis. & Ark. Lbr. Co., 268 S.W. 389; Skeen v. Springfield Engine & Thresher Co., 34 Mo. App. 485.

KEMP, J.

This is a suit on a note executed by defendant and payable to plaintiff, or order, dated October 26, 1936, and in the principal amount of $900. The balance alleged to be due thereon was $690, for which sum, together with interest and attorneys' fees, plaintiff prayed judgment.

Defendant filed the following answer:

"Now comes the above named defendant and for his answer to the above named petition of plaintiff admits an execution of the note sued on and described in said petition but denies plaintiff owns said note and any obligation to pay the said note for the following reasons:

"The said note was given for a new Neon sign to be installed on the Ben Bolt Coffee Shop, North Kansas City, Missouri and serviced for a period of five years from October 26, 1936. Defendant states that he has never received such sign contracted for although he has demanded that such sign be installed and that there is a total and complete failure of consideration for the said note.

"Defendant, further answering, states that plaintiff, instead of installing a new sign, installed an old and rebuilt sign which, defendant has just learned through Neon sign experts, was second-hand and rebuilt, which said sign defendant has tendered back to plaintiff and hereby tenders back to plaintiff.

"Wherefore defendant prays judgment against plaintiff on plaintiff's petition."

This is followed by two counterclaims set up in separate counts. In the first count, defendant alleged that on September 10, 1936, he contracted with the plaintiff to install a new Neon sign on the Ben Bolt Hotel in North Kansas City, Missouri, "the same to be a `Hotel Ben Bolt' sign and to be of new materials throughout, for the sum of $200; that defendant paid the full purchase price for the said sign." It is further alleged that defendant had just learned through Neon sign experts that the sign installed was an old, rebuilt sign, whereas he had contracted for the purchase of a new sign, and further that the sign installed was not the property of the plaintiff, but was the property of one Tom Gavin of Kansas City, Missouri. Defendant alleged that he had tendered back to plaintiff the sign that was installed and had demanded the return of the purchase price so paid, but that plaintiff had refused to pay same, and judgment for $200 was accordingly prayed.

The second count of the counterclaim alleged that on October 26, 1936, defendant contracted with plaintiff for a new Neon sign to be installed in the Ben Bolt Hotel, which sign was to read "Coffee Shop;" that the sign was to be made of new materials throughout, and was to be in first class condition; that the defendant had paid on the contract price the sum of $210; that plaintiff installed a "Coffee Shop" sign on said building, purporting to be a new sign built of first class materials, but that "he (defendant) has just learned through Neon sign experts that the said sign installed was an old, rebuilt sign of comparatively small value to the one contracted for; that he has tendered the same back to plaintiff and hereby tenders the same to plaintiff," which allegations were followed by a prayer for the $210 paid on the contract price.

Upon a trial of the issues thus raised, the jury returned a verdict in favor of the plaintiff for the balance due on the principal sum and for interest and for ten per cent attorneys' fees, in the aggregate sum of $851. On the first counterclaim concerning the "Ben Bolt Hotel" sign, the jury returned a verdict in favor of the defendant for $200. On defendant's second counterclaim for the amount paid by defendant on the contract price of the "Coffee Shop" sign, the jury found in favor of the plaintiff, whereupon the court rendered judgment in favor of the plaintiff in the sum of $651, representing the excess of the verdict in favor of the plaintiff over the verdict in favor of defendant on his counterclaim. From this judgment defendant has prosecuted an appeal to this court in case No. 19578. Thereafter, plaintiff obtained our writ of error to have reviewed the part of the judgment relating to the counterclaim which was adverse to him. That case is No. 19598. These two matters have been consolidated and will be disposed of in a single opinion.

We shall consider first the matters raised upon defendant's appeal. Defendant first assigns as error the refusal of the court to give his instruction in the nature of a demurrer to the evidence with respect to the plaintiff's cause of action on the note. We cannot consider this assignment for the reason that the abstract of the record does not contain all of the evidence. Although the record discloses a stipulation between counsel for plaintiff and...