Vandivort v. Dodds Truck Line, Inc.

• Decision Date: 23 July 1969
• Docket Number: No. 8853,8853
• Citation: 444 S.W.2d 229
• Parties: James Y. VANDIVORT and Charles T. Hayes, Plaintiffs-Respondents, v. DODDS TRUCK LINE, INC., a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 229

444 S.W.2d 229

James Y. VANDIVORT and Charles T. Hayes, Plaintiffs-Respondents, v.DODDS TRUCK LINE, INC., a corporation, Defendant-Appellant.

No. 8853.

Springfield Court of Appeals, Missouri.

July 23, 1969.

Moore & Brill, Richard D. Moore, Newton C. Brill, West Plains, for defendant-appellant.

G. C. Beckham, Steelville, William E. Seay, Salem, Granville L. Gamblin, St. Ann, for plaintiffs-respondents.

STONE, Judge.

In this jury-tried action at law in two counts for recovery on two negotiable promissory notes executed by defendantDodds Truck Line, Inc., plaintiffJames Y. Vandivort had a jury verdict on Count I for $10,335 and plaintiffCharles T. Hayes had a jury verdict on Count II for $2,586, the verdict on each count embracing the principal sum of the note in suit, interest thereon to May 3, 1968, the date of trial, and an attorney's fee of an additional 10%.From the judgment entered on those verdicts, defendant appeals.

Plaintiffs were minority shareholders of B & M Express Company, Inc.(hereinafter called B & M), Vandivort owning 60 shares and Hayes owning 15 shares of B & M common stock.The only other shareholder, Willard Eugene Camden, owned 120 shares of B & M common stock and was president and general manager of the corporation.The two notes in suit were executed and delivered by defendant in payment of the agreed purchase price of Vandivort's 60 shares and Hayes' 15 shares of B & M stock.The Vandivort note was in the principal sum of $6,000, the Hayes note in the principal sum of $1,500.Both notes were dated October 1, 1960, payable one year thereafter, with interest from date at 6% per annum, payable and compounded semiannually, and an attorney's fee of an additional 10% if suit were brought thereon.

During opening statements to the jury, defendant's counsel frankly admitted that defendant'did execute and deliver both of these promissory notes to the plaintiffs' and stated their intention 'to show, as (the) only defense, that these (Vandivort's and Hayes') shares of stock were never delivered to defendant corporation,'¹ i.e., that there was a lack or failure of consideration for the notes--an affirmative defense which, as required, ² had been pleaded in defendant's answer.The notes, admittedly executed and delivered, imported a consideration; ³ and their admission into evidence made a prima facie case for plaintiffs, which could have been overcome only by a showing that they were without consideration, ⁴ this being the pleaded affirmative defense on which defendant was required to shoulder the burden of proof.⁵However, after the notes were received in evidence plaintiffs did not rest as they might have done (cf.Duncan v. Black, Mo.App., 324 S.W.2d 483, 484;Waugh v. McCormick, Mo.App., 93 S.W.2d 77, 78) but, in anticipatory disaffirmation and refutation of the pleaded defense, adduced testimony showing (so plaintiffs here insist but defendant denies) that plaintiffs' stock certificates, assigned in blank, were delivered to Charles D. Dodds, secretary-treasurer of defendant corporation, about November 1, 1960, in a closing conference at the office of attorney William E. Seay in Salem, Missouri, of which more anon.

At the close of plaintiffs' evidence, defendant moved for an 'order dismissing plaintiffs' cause of action' on the grounds 'that plaintiffs have failed to sustain the burden of proof required by law to establish a case at law against this defendant, and failed to establish facts in evidence whereby plaintiff could recover any damages . . ..'When that motion was overruled, defendant stood on it and declined to offer any evidence.Whereupon, plaintiffs filed their written motion for a directed verdict on the ground that 'no evidence has been offered or received which raises a jury issue on . . . failure of consideration, as alleged in defendant's answer.'That motion likewise being overruled, the cause was submitted on instructions which enjoined a verdict for plaintiffs if the jurors believed that delivery of plaintiffs' stock certificates 'was made to Charles Dodds, an officer of the defendant corporation,' and a verdict for defendant if they did not so believe.Following entry of judgment on unanimous verdicts for plaintiffs, defendant filed its timely after-trial motion for judgment in accordance with its motion to dismiss at the close of plaintiffs' evidence or, in the alternative, for a new trial, and plaintiffs filed their timely after-trial motion to set aside the jury verdicts and judgment thereon and to enter judgment in accordance with their motion for a directed verdict at the close of all the evidence.Both motions being deemed denied by the trial court's failure to rule them within 90 days after the respective dates of filing (Rule 78.04;§ 510.360), defendant perfected this appeal.

The only points presented in defendant's-appellant's brief were that the trial court erred (1) in failing to give MAI 3.01, the burden of proof instruction defining the term 'believe' which, as the 'notes on use' state, 'must be given in every case,' and (2) in giving instruction 9 (characterized by defendant as 'a version of MAI 32.01') containing forms of verdict which provided for assessment of each plaintiff's damages in a single lump sum, when 'there was an applicable MAI instruction for this situation, namely MAI 32.09, ⁶ and as a result thereof defendant was prejudiced.'We need not and do not rule either of these points, ⁷ because we accept, for the purposes of this opinion, the ready concession of plaintiffs-respondents in their answering brief that, if defendant's pleaded affirmative defense was submissible on the evidence adduced, error in the particulars assigned by defendant might be found.However, plaintiffs earnestly insist here, as they did upon trial, that they were entitled to directed verdicts and that, therefore, no prejudicial error 'materially affecting the merits of the action'(Rule 83.13(b);§ 512.160(2)) could have resulted from the trial court's action in giving, or in failing to give, any instruction.If plaintiffs' premise be correct, the stated conclusion undoubtedly is sound and supported by abundant authority.⁸

So recognizing, defendant-appellant has, in a post-submission memorandum in the nature of a reply brief, joined issue with plaintiffs-respondents on the determinative question as to whether or not the pleaded affirmative defense of lack or failure of consideration was submissible, that (in the language of defendant's memorandum)'referring of course to plaintiffs' (alleged) failure to deliver to defendant the certificates of stock in B & M Express Company, Inc., for which the promissory notes were given' to plaintiffs.We agree with defendant that, in our determination of the submissibility of its affirmative defense, it is entitled to whatever benefit may be reaped from the evidence adduced by plaintiffs(cf.Terry v. Metropolitan Life Ins. Co., Mo.App., 206 S.W.2d 724, 728(7)), and that we must consider such evidence in the light most favorable to defendant.With those principles in mind, we return to the transcript.

At plaintiff Vandivort's drug store in Salem, Missouri, where his brother-in-law, plaintiff Hayes, also worked, Vandivort endorsed in blank on its reverse side the certificate evidencing his ownership of 60 shares of B & M stock, and Hayes likewise endorsed in blank on its reverse side the certificate evidencing his ownership of 15 shares of B & M stock.Vandivort handed his endorsed stock certificate to Hayes at the drug store, and the latter then took both of the endorsed stock certificates to the office of their attorney, William E. Seay, in Salem where he(Hayes) left them with Seay or his secretary, Mrs. Gertie Hayes, the mother of plaintiff Hayes.Later that same day, Willard Eugene Camden, B & M's president, general manager and majority stockholder, and Charles D. Dodds, defendant's secretary-treasurer and one of the two officers who executed the notes in suit on behalf of defendant corporation, met with attorney Seay in his office.Seay's secretary, Mrs. Gertie Hayes, also was there.Three of those present on that occasion, namely, Camden, Mrs. Hayes nd Seay, were called to the witness stand by plaintiffs.Dodds did not testify.

Camden's testimony bearing upon the critical issue of delivery vel non of plaintiffs' stock certificates was: 'I had (my stock certificate) and Charles Hayes' and Jimmy Vandivort's (stock certificates) were on Bill Seay's desk and I picked theirs up and put with mine and handed them to Charles Dodds.'Camden then identified plaintiffs' stock certificates endorsed in blank as being those which, with his own certificate, he had handed to Dodds in Seay's office.'Mr. Seay (aksed) of Mr. Dodds if he wanted him (Seay) to transfer the stock.In other words, fill out the (assignment)--put a name in it and Charles (Dodds) said 'you might as well.'And he in turn handed them (the stock certificates) to Mr. Seay and Mr. Seay put one of them in the typewriter and then Charles says 'well, wait a minute, Bill.'He says 'now, I better talk to the boys about this; they may want something else put on there.'He said, 'would you (Seay) mind keeping them here for a few days in your safe until I find out. '' Witness Canden and Dodds then left Seay's office together.

The testimonial narrative of Mrs. Hayes concerning the same meeting follows: 'Eugene (Camden) picked up the stocks from the table and handed them to Charles Dodds and told him 'here are all the stocks--the certificate of stocks of the B & M Express Company.'Charles looked tem all over and then Mr. Seay told him that he might as well sign them over to the Dodds Truck Line and he(Dodds) said 'yes, go ahead.'Mr. Seay took one of the certificates and put it in his typewriter, which he had on his desk, and started to type and Charles Dodds stopped him.And he said 'well, I believe that I'd better take this up with the boys, B...