The Globe American Corp. v. Miller

• Citation: 131 S.W.2d 340
• Decision Date: 31 July 1939
• Docket Number: No. 19399.,19399.
• Parties: THE GLOBE AMERICAN CORPORATION, RESPONDENT, v. K.I. MILLER, APPELLANT.
• Court: Court of Appeal of Missouri (US)

131 S.W.2d 340

THE GLOBE AMERICAN CORPORATION, RESPONDENT, v. K.I. MILLER, APPELLANT.

No. 19399.

Kansas City Court of Appeals, Missouri.

July 31, 1939.

Appeal from Circuit Court of Sullivan County. — Hon. Paul Van Osdol, Judge.

AFFIRMED.

L.E. Atherton and York & York for respondent.

(1) The appeal should be dismissed, as appellant's statement does not comply with Rule 16 of this court. Daniels v. Burns, 283 S.W. 749, l.c. 750; Sec. 1060, R.S. Mo. 1929; Euler v. State Highway Com., 55 S.W. (2d) 719, l.c. 722; State ex rel. State Highway Com. v. Shain, 62 S.W. (2d) 711, l.c. 715; Evans v. Hilliard, 112 S.W. (2d) 886, l.c. 888; Sims v. Hydraulic Pressed Brick Co., 19 S.W. (2d) 294; LeClair v. LeClair, 77 S.W. (2d) 862. (2) Appellant cannot say that, in view of signing the original guaranty contract, he did not intend to guarantee the notes which bore eight per cent interest after maturity and attorney fees. (3) The evidence complained of was properly admitted. Townsend v. Alewel, 202 S.W. 447. (4) Respondent did not waive its right to make objection to the introduction of Exhibits 2 and 3.

P.M. Marr, Allen Rolston and L.F. Cottey for appellant.

(1) (a) The alleged letter of guaranty, did not undertake to guarantee notes bearing interest at the rate of eight per cent, or any compound interest, nor did it guarantee the payment of any attorney fees, nor the payment of any notes containing clauses providing for waiver of demand and notice. In each of these particulars the notes offered in evidence by respondent, differed from the notes appellant undertook to guarantee. Thus they impose a different and more onerous burden upon appellant than he agreed to assume. Appellant is entitled to the benefit of a strict construction of his undertaking, and his liability cannot be enlarged by inference. W.T. Raleigh Medical Co. v. Modde, 209 S.W. 958, 962; J.R. Watkins Co. v. Smith, 31 S.W. (2d) 544, 546. (b) The full performance of the obligation on respondent's part was a matter of consideration for, and hence a condition precedent to recovery on, appellant's undertaking. 12 C.J., p. 408; Globe American Corporation v. Miller Hatcheries, 110 S.W. (2d) 393, l.c. 397. Appellant "has the right to insist upon the strict performance of any terms or conditions which have been stipulated." Globe American Corporation v. Miller Hatcheries, supra, 396; 29 C.J., p. 936. (2) Evidence was erroneously admitted by the trial court over appellant's proper and timely objection thereto, and wrongfully permitted to remain in the record despite appellant's proper and timely motion to strike the same. (3) Evidence was improperly excluded by the trial court, when offered by appellant. The court's ruling was improper: 1st: Because respondent had waived its right to make that objection by voluntarily inquiring into conversations which preceded and led up to the execution of Exhibit A. Having opened up that field of inquiry, respondent cannot prevent appellant from entering it. Larabee Flour Mills v. Commission Co., 262 S.W. 389, 391; Bethany Savings Bank v. Cushman, 66 Mo. App. 102, 105; Mead v. Arnold, 131 Mo. App. 214, 223, 2nd: Because Exhibit A is ambiguous and incomplete and refers to a prior proposition made by respondent to appellant, such proposition being that embodied in appellant's Exhibit 2, for which reason Exhibits 2 and 3 were admissible to explain the apparent ambiguity of Exhibit A. (4) The judgment is erroneous on its face, and should have been set aside, because it amounts to a finding that appellant guaranteed some notes, but that they were notes containing no attorney fee clause, and thus that they were not the notes described in the petition or introduced in evidence, for those notes provided for the payment of attorney fees. Also, because the disallowance of the prayer for attorney fees was tantamount to a finding that attorney fees were not guaranteed; hence a finding that appellant guaranteed one part, but not another, of the notes. The notes do not contain severable and distinct portions of liability; if appellant failed to guarantee one part of them, he failed to guarantee every part of them. The motions for new trial and in arrest of judgment should, therefore, have been sustained.

KEMP, J.

This case is here on appeal for the second time, the first appeal, as is the present appeal, having been from a judgment in favor of the plaintiff. On the previous appeal the case was reversed and remanded because of the insufficiency of the petition in failing to allege the performance by plaintiff of the conditions of the alleged guaranty. [See Globe American Corporation v. Miller Hatcheries, Inc., et al., 110 S.W. (2d) 393.]

This is a suit based upon two promissory notes, each in the principal amount of $700, executed by the Miller Hatcheries, Inc., the payment of which, it is alleged, was guaranteed by the defendant, K.I. Miller, who was the president of said corporate defendant. Miller was made a party defendant on the basis of his alleged guaranty. Defendant Miller Hatcheries did not contest the suit and suffered judgment by default. Defendant Miller appeared, a jury was waived, and the court, upon hearing the evidence, found the issues in favor of plaintiff and against both defendants, in the sum of $1229.45, with interest at eight per cent per annum, compounded annually, from the date of said judgment. From this judgment defendant Miller has prosecuted this appeal. So far, therefore, as the questions involved in this appeal are concerned, this is a suit on the plaintiff's alleged guaranty.

The case was tried upon plaintiff's second amended petition which was in two counts. By adopting in the second count certain allegations in the first count, the allegations of the two counts of the petition are identical, except as to the description of the respective notes and the respective amounts due thereon. The amended petition contained conventional allegations of a suit on a promissory note, and as to the alleged guaranty of defendant Miller contained the following allegations:

"Plaintiff further states that at the request of the plaintiff and before the execution and delivery of the note hereinabove mentioned in consideration of the plaintiff dismissing a certain suit against the Miller Hatcheries then pending in the Circuit Court of Lancaster, Missouri, and in settlement of all claims of plaintiff against either of the defendants herein and if plaintiff would secure as much business from Montgomery Ward & Company as possible and if such orders were not sufficient to pay the notes, the notes were to be renewed for a period of one year, and in further consideration of plaintiff attempting to collect certain checks for defendants (which checks and accounts were never forwarded by defendants to plaintiff) the defendant, K.I. Miller, at the request of the plaintiff did guarantee the payment of said note and said guaranty was with the express intention on the part of the said K.I. Miller of causing plaintiff to accept said note that said guaranty by which defendant K.I. Miller guaranteed said note is in words and figures as follows, to-wit:

                                          "October 28, 1932
                "Mr. W.D. Harvey Globe American Corporation
                    Kokomo, Indiana
                

"Dear Mr. Harvey: We hereby accept your proposition in full settlement of all claims against the Miller Hatcheries of Lancaster, Missouri, or K.I. Miller, personally, which outlined as we understand it is as follows:

"The Miller Hatcheries Incorporated of Lancaster, Missouri are to give two notes of $700 each, these notes drawing 6% interest from date. One note due June 1, 1933 and the other note due July 1, 1933. It is also understood that the writer will personally guarantee the payment of these two notes, but would like to have this provision understood that if for any reason Montgomery Ward & Co. should fail to send the Miller Hatcheries orders for baby chicks, sufficient to liquidate the two notes, then 50% of the $1400 may be renewed for a period of one year.

"It is also understood that you will use every effort possible to get as much additional business from Montgomery Ward & Co. as possible and that we receive the same price that Ward pays P.F. Clardy for the same grade and variety of chicks.

"It is also agreed that we are to send you certain bad checks we have on a party in Indiana and together with the power of attorney to act for us and any amount collected on these checks or accounts can be applied equally on these two notes. It is also understood and agreed that the Globe American will drop the suit now pending in the Circuit Court of Lancaster, Missouri, against the Miller Hatcheries as soon as this transaction is carried out. The Miller Hatcheries will pay all costs but no attorney fees for the Globe American.

                    "Very truly yours
                                 "(signed) K.I. Miller
                

"That the Harvey so addressed in said letter was at said time agent and president of the plaintiff company and that said letter was addressed to him as such agent and president and said offer of guaranty was by him accepted on behalf of said company by writing the words `Accepted Globe American Corp. W. Dow Harvey, President' thereon and in the presence of defendant K.I. Miller. That at all times herein the said W. Dow Harvey was acting as president and agent of plaintiff company and all transactions herein mentioned were with him as president and agent of said company and the defendant K.I. Miller so understood at the time.

"That thereafter the defendant K.I. Miller pursuant to the above guaranty and in accordance with the terms thereof mailed to said W. Dow Harvey, agent of plaintiff, two notes, one of which is note in this count sued on and again personally guaranteed said note which said letter of transmittal on the note and again guaranteeing said note, in words and figures is as follows:

                                                "Lancaster, Missouri

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