Thomas v. Sterling Finance Co.
| Decision Date | 06 June 1944 |
| Docket Number | No. 26628.,26628. |
| Citation | 180 S.W.2d 788 |
| Parties | THOMAS v. STERLING FINANCE CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Robert J. Kirkwood, Judge.
"Not to be reported in State Reports."
Action by Christ Thomas against Sterling Finance Company for breach of contract to make a loan. From a judgment dismissing his petition, the plaintiff appeals.
Reversed and remanded.
Ivan H. Light, of St. Louis, for appellant.
Joseph Boxerman, of St. Louis, for respondent.
BENNICK, Commissioner.
This is an appeal by the plaintiff from the judgment of the Circuit Court of the City of St. Louis sustaining what was denominated a "plea in bar", and dismissing his petition at his costs.
The plaintiff is Christ Thomas, a customer of defendant, Sterling Finance Company, a small loan company operating in the City of St. Louis.
The present suit was instituted on June 11, 1943; and thereafter plaintiff filed an amended petition in which he alleged that in December, 1932, he was operating a restaurant on Franklin Avenue in the City of St. Louis, and owned certain restaurant fixtures and equipment at that location; that on December 8, 1932, he negotiated a loan of $200 from defendant as evidenced by a promissory note secured by a chattel mortgage on all of his restaurant fixtures and equipment; that in August, 1933, there was a balance of $57 due on his note, which he was unable to repay; and that on August 14, 1933, defendant, with knowledge of the situation, orally agreed with him and one Spasser that if Spasser would pay the balance of $57 due on the note, defendant would make plaintiff a new loan of $200, out of the proceeds of which Spasser would be repaid the $57 advanced by him.
Plaintiff further alleged that on August 14, 1933, defendant received Spasser's check for $57 in payment of the balance due on plaintiff's note to defendant; that defendant cashed the check and received and kept the proceeds; but that defendant thereafter failed and refused to make plaintiff a new loan of $200 or any other amount, and, without plaintiff's knowledge or consent, assigned the note and chattel mortgage to Spasser. Plaintiff was unable to raise or borrow money to satisfy the mortgage, which was thereupon foreclosed by Spasser, who took possession of plaintiff's restaurant and equipment, with the result that plaintiff was compelled to close his restaurant, was forced out of business, and lost his means of livelihood, as well as his restaurant fixtures and equipment, which were reasonably worth the sum of $750.
It was then alleged that defendant knew that plaintiff was unable to raise money on the market and that Spasser had agreed to pay defendant the balance due from plaintiff in order to clear up plaintiff's indebtedness to defendant so as to enable plaintiff to secure another loan of $200 from defendant and thereby save his fixtures and restaurant business, but that defendant, with full knowledge of the special circumstances in the case, failed to perform its contract with plaintiff and Spasser, and thereby became liable for the damages resulting to plaintiff.
It was further alleged that in January, 1935, less than five years after defendant's alleged breach of its contract to make the new loan of $200, plaintiff had instituted an action against defendant seeking the recovery of damages upon the cause of action embraced in the present suit; that on April 29, 1942, plaintiff had taken an involuntary nonsuit in such prior action; and that on June 15, 1942, the court had overruled his motion to set aside the involuntary nonsuit.
Plaintiff then alleged that by reason of defendant's breach of its contract with him and Spasser, he had been damaged in the loss of his restaurant business and equipment and good will in the sum of $1,750, for which sum he prayed judgment against defendant.
The question at issue on this appeal is whether the present suit — an action for damages for breach of an oral contract to make a loan — was barred by limitation (Sec. 1014, R.S.Mo.1939, Mo.R.S.A. § 1014) at the time of its institution on June 11, 1943, which was more than five years, and in fact almost ten years, after the breach relied upon as the foundation of the action. It will be noted that in order to escape the bar to which his action would otherwise be subject, plaintiff sought to avail himself of the saving clause of Section 1026, R.S.Mo 1939, Mo.R.S.A. § 1026, which provides that if any action shall have been commenced within the time prescribed for an action of its class, and the plaintiff therein suffers a nonsuit, such plaintiff may commence a new action within one year after the nonsuit was suffered in the previous action. The original suit was commenced well within time; and a nonsuit was "suffered" on June 15, 1942, when the court overruled the motion to set the same aside, thereby making the judgment of nonsuit final, with no appeal taken so far as the record discloses. The present action was of course commenced within a year after nonsuit was suffered in the previous action, and was therefore saved from the bar of limitation, if the cause of action was the same as that originally set forth. St. Charles Savings Bank v. Thompson, 284 Mo. 72, 223 S.W. 734. However, if the cause of action set up in the present suit was a different cause of action from that embraced in the original suit, then Section 1026 would not have extended the time for the bringing of the action (Halloran v. Hackmann, Mo.Sup., 160 S.W.2d 769), and plaintiff's present action would be barred by Section 1014, which provides that all actions upon contracts (such as the one pleaded in the case at bar) shall be brought within five years after the right of action accrues.
The defense, so far as we are presently concerned with it, being one of the statute of limitations (which depended for its establishment upon the same tests as are applied in determining whether a new petition is an amendment or a departure, Halloran v. Hackmann, supra), and plaintiff's petition being sufficient on its face to bring it within the saving provision of Section 1026, defendant elected to interpose its defense by filing what it denominated a "plea in bar", in which, among other things, it incorporated what is conceded to be a verbatim copy of the petition in the original action in which plaintiff suffered a nonsuit.
While defendant styled its pleading a "plea in bar", the same was in reality an answer denying generally the existence of the "cause of action as alleged", and setting up the affirmative defense of the statute of limitations, which is a defense to be affirmatively pleaded in a case of this character, where the bar of the statute does not appear from the face of the petition. Halloran v. Hackmann, supra; Lorberg v. Jaynes, Mo.App., 298 S.W. 1059.
Under our code, the only pleading on the part of a defendant is either a demurrer or an answer (Sec. 920, R.S.Mo. 1939, Mo.R.S.A. § 920); and if an answer, it shall contain a denial of each material allegation of the petition controverted by the defendant, together with the statement of any new matter constituting a defense. Sec. 928, R.S.Mo.1939, Mo.R.S.A. § 928. The plea in question was directed to the cause of action, and, if true, afforded a full and complete defense. Conceding that it was not in the usual form of answer, and may actually not have been regarded by defendant itself as an answer, its legal character is none the less to be determined by its subject matter, and not by its designation. It was in no sense a dilatory plea, but instead was based upon defensive elements of fact dehors the record to defeat the cause of action set out in the petition. Being sustained after a hearing at which the parties orally agreed that the petition in the original suit was correctly copied in the "plea in bar", a final judgment was entered dismissing plaintiff's cause of action at plaintiff's costs, for which execution was ordered to issue. An answer under code practice is, in practical effect, a plea in bar, or a combination of pleas in bar, as known in the practice at common law; and defendant's plea is therefore to be treated as an answer in determining its function in the case.
While Sterling Finance Company is the sole defendant in the present action, it appears that the original action was initially brought against three defendants — the finance company; one Bromeyer, its president; and Spasser, who was described in the petition as being engaged in the meat and grocery business. Bromeyer successfully demurred to the petition, and plaintiff dismissed as to defendant Spasser, leaving the case to proceed solely against the finance company, just as is true in the case at bar. Thereafter plaintiff suffered an involuntary nonsuit; and this action followed within a year, as has already been pointed out.
There could be no question about the fact that the two petitions were in substantial accord in relating the transaction out of which the controversy has...
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