State ex rel. Stevens v. Arnold

• Decision Date: 04 September 1930
• Parties: The State ex rel. F. L. Stevens v. Henry L. Arnold et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

30 S.W.2d 1015

326 Mo. 32

The State ex rel. F. L. Stevens v. Henry L. Arnold et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

September 4, 1930

Certiorari to Kansas City Court of Appeals.

Opinion and judgment quashed.

G A. Kenderdine and Woodruff & Woodruff for relator.

(1) The burden of proof of facts amounting to notice or bad faith and thus establishing to the satisfaction of the jury that plaintiff is not a holder in due course, is on the defendant. Downs v. Horton, 287 Mo. 414, 230 S.W. 103. (2) The term "burden to prove" as used in the statute (Sec 845, R. S. 1919) means the burden of the evidence, and not the burden of convincing the jury. Downs v. Horton, 287 Mo. 414, 230 S.W. 103. (3) The submission in an instruction of an issue not supported by the evidence is error. Adams v. Kendrick, 11 S.W.2d 16; Althage v. Motorbus Co., 8 S.W.2d 924; Charr v. McLoon, 304 Mo. 238, 263 S.W. 174; Champion Coated Paper Co. v. Shilkee, 237 S.W. 109; Milan Bank v. Richmond, 235 Mo. 532; Webster College v. Tyler, 35 Mo. 268. (4) The submission of an issue not raised by the pleadings is error. Champion Coated Paper Co. v. Shilkee, 237 S.W. 109; McKenzie v. Randolph, 257 S.W. 126; State ex rel. Life Ins. Co. v. Allen, 282 S.W. 46.

H. J. Bain for respondents.

(1) When the respondents have promulgated no rule of law in conflict with a former controlling decision of the Supreme Court on the same or similar facts, they have the inherent right to determine the issues involved whether their rulings be right or wrong. State ex rel. Travelers Indemnity Co. v. Daues, 285 S.W. 480, 315 Mo. 22; State ex rel. Cox v. Trimble, 279 S.W. 65, 312 Mo. 322; State ex rel. Vogt v. Reynolds, 295 Mo. 396, 244 S.W. 929; State ex rel. Calhoun v. Reynolds, 289 Mo. 514, 233 S.W. 483; State ex rel. Packing Co. v. Reynolds, 287 Mo. 697, 230 S.W. 642. (2) If the decision of respondents does not contravene the last previous controlling decision of the Supreme Court on the same or similar facts, relator's writ of certiorari should be quashed. Sec. 6, Amendment of 1884 to Mo. Constitution; Thomas v. Goodrum, 231 S.W. 571; State ex rel. Noe v. Cox, 19 S.W.2d 695; State ex rel. Dean v. Daues, 14 S.W.2d 990; State ex rel. Ins. Co. v. Trimble, 300 S.W. 812, 318 Mo. 173; State ex rel. Life Ins. Co. v. Allen, 267 S.W. 832, 306 Mo. 197; State ex rel. Ins. Co. v. Reynolds, 235 S.W. 88, 290 Mo. 362; State ex rel. Cox v. Trimble, 279 S.W. 65, 312 Mo. 322.

OPINION

Ragland, J.

In this proceeding relator seeks to have quashed, on the ground of conflict of decision, the opinion and judgment of the Kansas City Court of Appeals in the case of F. L. Stevens, appellant, v. D. K. Bryant, respondent, lately pending before that court on appeal from the Circuit Court of Grundy County. The ruling complained of and the facts constituting the basis of the ruling sufficiently appear from the following portions of the opinion:

"This is an action by the assignee of six monthly promissory notes executed by defendant, given in payment for merchandise ordered from the original payee. The petition is in six counts, one for each note, with an additional prayer in each count for $ 25 attorney's fee on the note involved. Defendant's answer was a general denial, and the further allegation that the purported notes were procured from him by false and fraudulent representations, that the merchandise for which they were given was not as represented and that he was unable to dispose of same, and that plaintiff was not a holder in due course. The reply was a general denial.

"At the trial on June 8, 1928, the jury returned a verdict for the defendant. Plaintiff filed motions for a new trial and for a judgment non obstante veredicto, which the court overruled, and then entered judgment for defendant in accordance with the verdict, from which judgment plaintiff brings this appeal.

"The evidence shows that defendant was in July, 1926, and still is, in the business of handling radios in Trenton, Grundy County, Missouri. On July 25, 1926, he was called upon by one Cummings, representing a manufacturing company or partnership, of Iowa City, Iowa, who solicited him to purchase some of the radios put out by his company, and to take the agency for same. . . . Defendant finally signed a contract calling for a first delivery to him of three radio sets, at the trade discount rate, or $ 288.33 net, with an agreement for a three-year agency by defendant on terms set forth. At the same time defendant signed the six notes in question, attached by perforation to the contract, being five notes for $ 50 each, due in two, three, four, five and six months, respectively, and one for $ 38.33 due in seven months. They did not call for the payment of interest, but each one provided that 'in case of default in payment, I agree to pay payee's reasonable attorney fees.' . . .

"Respondent's evidence convincingly shows, and the jury was justified in finding, that the radios received were greatly inferior to what had been represented to him; so much so that they were practically worthless and unsalable, and in no respect approached in make-up, in external or internal appearance, in their 'tuning-in' effect or reproducing qualities, or in their long distance receiving capacity, what the agent's representations justifiably led respondent to believe he was purchasing. . . .

"The evidence further showed that plaintiff was a practicing lawyer of Iowa City, and also somewhat extensively handled investments for himself and clients, in the nature of notes, mortgages, tax titles and general investments. Since May, 1926, and up to the date of the trial, he had purchased approximately $ 250,000 in notes from the manufacturing company in question, of which about $ 100,000 was within the last year; that on September 7, 1926, he had purchased from them at their request, a bunch of notes of a total face value of $ 4,973.33, for the sum of $ 4,500; that the notes in suit were among them. Witness Loveland, of the company, testified as to this sale: 'Of course he paid for each note its proportionate share of the whole.' Plaintiff denied any business relationship with the company except in the purchase of notes, and denied knowledge of any just offset or counterclaim which defendant might have against him, growing out of this or any other transaction; that he knew when he purchased these notes from the company that 'they had been given to them for merchandise of some sort, but I didn't know what.' . . .

"His strongest statement (introduced by two depositions) is that he bought the notes on September 7th at a discount, that at the time of the deposition he did not know of any just offset or claim which Mr. Bryant might have against him growing out of this or any other transaction; that at the time he bought the notes he did not know of any difference between Mr. Bryant and the Brenard Manufacturing Company that might lead to difficulty in the collection of these notes; that he did not have any reason to believe that there might be any difficulty in the collection of the notes or he would not have purchased them. . . .

"Appellant alleges four assignments of error. Passing for the moment the first of these, as to the court's refusal of plaintiff's peremptory instruction for a verdict, and to enter judgment non obstante veredicto, his second is as to the giving of defendant's instructions numbered 1 and 6, as follows:

"'1. The court instructs the jury that when D. K. Bryant purchased the radios on the representation of the salesman, he had a right to inspect them and try them out when they arrived to see if they were in accordance with the specifications. In this connection, if you believe and...