Superior Loan Corp. of Buffalo v. Robie

Decision Date25 January 1972
Docket NumberNo. 9074,9074
Citation476 S.W.2d 144
PartiesSUPERIOR LOAN CORPORATION OF BUFFALO, a corporation, Plaintiff-Respondent, v. George ROBIE and Pauline Robie, Defendants-Appellants.
CourtMissouri Court of Appeals

Bussell, Hough, Greene & Bernhardt, David W. Bernhardt, Springfield, for defendants-appellants.

STONE, Judge.

In this jury-waived court-tried action on a promissory note, judgment was entered in favor of plaintiff Superior Loan Corporation of Buffalo (Superior) for and in the principal sum of $1,586.67 against defendants George Robie and Pauline Robie, husband and wife, who now appeal.

The pleaded affirmative defense upon which defendants relied was that their debt evidenced by the note in suit had been listed properly in schedules filed with their voluntary petition in bankruptcy during April 1969 and that their subsequent discharge in bankruptcy relieved them of further liability upon the note. On the other hand, Superior asserted in the trial court 1 that defendants' debt evidenced by the note was nondischargeable in bankruptcy because it was within the second of the three exceptions in § 17 of the Bankruptcy Act as amended (11 U.S.C.A. § 35(a)(2)):

'A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as . . . (2) are liabilities (1) for obtaining money or property by false pretenses or false representations, or (2) for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive, or (3) for willful and malicious conversion of the property of another.' (All emphasis herein is ours.)

The note in suit dated September 5, 1968, in the 'face amount' of $1,725 (including interest) payable in twenty-five monthly installments of $69 each was 'a renewal loan,' from the proceeds of which the then outstanding balance of a prior loan by Superior to defendants was paid and they received 'new money' in the sum of $391.95. This was the fourth loan Superior had made to these defendants. The first loan was made on November 15, 1966, the second loan an May 27, 1967, and the third loan on March 26, 1968. Witness Ruble, Superior's manager, testified that a written financial statement signed by the borrowers was taken 'on all loans,' and such signed financial statements obtained in connection with the second, third and fourth loans were received in evidence upon trial. Each such statement was taken on a printed form in which the borrowers represented that the creditors and amount of indebtedness to each as written on the blank lines provided for that purpose constituted 'a complete and accurate listing of all of my debts,' excepting only 'gas, electric, rent and water.' In their signed financial statement of May 27, 1967 (the second financial statement), defendants recorded four creditors to whom they were indebted in the aggregate sum of $3,738.50. 2 In their signed financial statement of March 26, 1968 (the third financial statement), they listed three creditors and aggregate indebtedness of $1,400. 3 And in their signed financial statement of September 5, 1968 (the fourth financial statement) only two creditors and aggregate indebtedness of $1,300 were shown. 4 In their bankruptcy schedules they listed seven secured creditors and an aggregate indebtedness of $13,307.12 with the aggregate 'value of securities' estimated at $11,400, 5 and thirty unsecured creditors to whom they were indebted in the aggregate amount of $4,009.57. 6 Upon trial, defendant George expressly admitted that all of the secured debts listed in defendants' bankruptcy schedules were outstanding when Superior's fourth loan was made on September 5, 1968, and inferentially conceded that all of the unsecured debts likewise were outstanding on that date. In fact, 'most of them' were more than ten years old (so he said), although he readily acknowledged that more recent payments had been made on some of those debts.

As ably and earnestly presented by their counsel, the essence of defendants' position on appeal is that, in making the fourth loan on September 5, 1968, plaintiff Superior (a) had no right to rely, and (b) in fact did not rely, upon the written financial statement of that date admittedly signed by them. Only three witnesses testified, namely, R. F. Ruble, plaintiff Superior's manager, and the two defendants. In here urging outright reversal of the judgment nisi, defendants' counsel refer, in the argument section of their brief, only to the above-described financial statements and the testimony of witness Ruble to which we now attend.

When defendant George Robie sought a renewal loan and additional cash at Superior's office on September 5, 1968, manager Ruble first prepared and completed an 'application,' which (as he explained) was 'taken by us, previous to making a loan' but was not signed by defendants. Although it was produced by Ruble, was scrutinized by counsel, and was before the trial court, this application was not offered in evidence. That aside, Ruble said that, in preparing the application, he asked what defendants owed and then recorded in that document the names of the creditors and the amount owing to each as supplied by defendant George. Thereafter, on the same day the new note and a check were typed by Ruble's secretary; the fourth financial statement (on a form used by Superior) 7 was prepared by recording therein the information concerning defendants' creditors and indebtedness as theretofore furnished by defendant George and entered by Ruble in the loan application, to wit, defendants' indebtedness to Shewmaker Motors in the sum of $100 payable $10 per month and their indebtedness to 1st National Bank in the sum of $1,200 payable $55 per month; and the note and financial statement were signed by defendant George, then taken by him to the Robie home for signature by his wife, defendant Pauline, and subsequently returned to plaintiff's office where, after the signed instruments were delivered to Ruble, the check for the 'new money' in the sum of $391.95 was given to defendant George.

Did plaintiff Superior have the right to rely upon defendants' fourth financial statement? The insistence of defendants' counsel upon a negative answer to that question rests essentially upon the premise 'that had plaintiff merely opened its eyes to its own files it would have seen that (defendants) had debts other than those listed' in their fourth financial statement. This (so counsel argue) because (a) defendants' second financial statement dated May 27, 1967, disclosed an indebtedness of $3,650 to Chrysler Credit payable in monthly installments of $109.50 each which, on that basis, would not have been completely liquidated when their fourth financial statement was taken on September 5, 1968, and (b) both defendants' third financial statement dated March 26, 1968, and their fourth financial statement listed the same indebtedness of $100 to Shewmaker Motor and $1,200 to 1st National Bank, although the third financial statement indicated that those obligations were payable in monthly installments.

In considering this argument we have in mind, as no doubt the trial court did, other relevant evidence and circumstances. Although we are not informed as to the extent of defendants' formal education, it is abundantly apparent from the record as a whole that they are literate--a significant element in cases of this character. 8 The form, on which the fourth financial statement was completed, opened with the clear, conspicuous caveat that the statement was given 'to induce Superior Loan Corporation . . . to make me a loan of money and to accept payment over an extended period of time . . ..' Cf. Avco Finance Co. of Marshall v. Baker, Mo.App., 472 S.W.2d 46, 47. Plaintiff's manager Ruble stated on cross-examination that 'Mr. Robie (defendant George) had been making awful good money' and that 'he was going into business.' And it was defendant George who in his testimony brought into the record the fact that, when manager Ruble examined defendants' fourth financial statement, he (Ruble) commented that 'It looks like you've been paying your accounts down.' However, there was no suggestion that defendant George said or did anything to correct or disperse this disclosed but mistaken belief engendered by the false financial statement. At this point suffice it to record our considered conclusion that whether or not plaintiff Superior had the right to rely upon defendants' fourth financial statement was a submissible issue for determination in the first instance by the trial court.

Did plaintiff Superior rely upon defendants' fourth financial statement? The theory of defendants' counsel is that 'the reliance, if any, of (plaintiff's manager) Ruble in making the loan to (defendants) was based upon an instrument prepared by Ruble himself and never executed by either (defendant),' namely, the loan application preliminarily prepared by Ruble but not signed by defendants, and that 'what was stated on this (fourth) financial statement did not effect (sic) his decision as to whether or not to make the loan because he had already been given information by defendant George Robie upon which he relied to make this loan.' Certain fragments of Ruble's testimony, if isolated and accepted out of context, might afford some support for the above-stated contention. But where, as here, testimony of a witness, even though not altogether consistent, is not inherently self-contradictory (Kestner v. Jakobe, Mo.App., 446 S.W.2d 188, 194), it must be considered as an integrated whole. 9 When so viewed, the clear and unmistakable gist and import of Ruble's testimony was that, on the information preliminarily obtained from defendant George and recorded on...

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  • Odum v. Cejas
    • United States
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    ...here, the testimony of a witness, even though not altogether consistent, is not inherently contradictory (Superior Loan Corp. of Buffalo v. Robie, 476 S.W.2d 144, 148(2) (Mo.App.1972); Kestner v. Jakobe, 446 S.W.2d 188, 194 (Mo.App.1969)), it must be considered as an integrated whole. Dimon......
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    ...to do where the testimony of each, though not altogether consistent, was not inherently self-contradictory (Superior Loan Corp. of Buffalo v. Robie, Mo.App., 476 S.W.2d 144, 148(2), and cases collated in note 9), it may not fairly and reasonably be inferred and found either (a) that Molly h......
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