Western Oil & Gas Co. v. O'Dell

• Decision Date: 07 March 1938
• Docket Number: No. 19062.,19062.
• Citation: 115 S.W.2d 134
• Court: Missouri Court of Appeals
• Parties: WESTERN OIL & GAS CO. v. O'DELL et al.

115 S.W.2d 134

WESTERN OIL & GAS CO. v. O'DELL et al.

No. 19062.

Kansas City Court of Appeals. Missouri.

March 7, 1938.

Rehearing Denied April 4, 1938.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be published in State Reports."

Action by the Western Oil & Gas Company against Donald D. O'Dell and others to recover on a note, wherein the named defendant filed a counterclaim for breach of employment contract. From an adverse judgment, plaintiff appeals.

Reversed.

Dwight Beals, of Kansas City, for appellant.

Johnson, Garnett & Quinn, of Kansas City, for respondents.

SPERRY, Commissioner.

This action was begun in justice court on a petition filed therein by Western Oil & Gas Company, a corporation, which will be referred to herein as plaintiff; the petition being based on a note, the original amount thereof being $87.20. The note was executed by defendant Donald D. O'Dell, who will be referred to as defendant, as principal maker; and by defendants Lawrence J. Tye and David I. Warren, sureties and cosigners, who will be referred to herein as codefendants.

In answer to the petition, defendant filed a statement admitting the execution of the note, but stating that same was executed by him as principal to cover balance due plaintiff from defendant on account of gas and oil furnished him by plaintiff and sold by defendant to customers of an oil station, which he operated, and wherein he handled plaintiff's merchandise; that said customers had not paid for this merchandise and that he owed plaintiff therefor; that plaintiff had demanded payment and an agreement had been reached between plaintiff and defendant whereby defendant had agreed to sign this note and procure codefendants as cosigners and sureties thereon; that plaintiff agreed to accept same in payment of the amount due and to continue to employ defendant as its agent at the station and to deduct the sum of $10 per month from moneys due him for services, for a period of nine months, applying same to the payment of the note; that, in violation of said agreement, plaintiff discharged him the next day after the note was executed and delivered to it; and that he would have profited, by reason of the contract of employment, in the amount of $60 per month for nine months, a total amount of $540. He further alleged a total failure of consideration for the note; gave credit to plaintiff for the amount of the note, $87.20, on the amount claimed as damages for the breach of the contract of employment, $540; and "prayed for judgment against plaintiff on defendant's counterclaim in the sum of four hundred fifty two (452.80) dollars and eighty cents."

A trial on these pleadings in the justice court resulted in verdict and judgment for plaintiff and against all defendants in the sum of $71.09; and a judgment for plaintiff on defendant's counterclaim. Defendant appealed to circuit court, where, by leave of court, all defendants filed "amended answer" wherein facts as to the making of the note, the reasons therefor, the breach of the contract of employment, all as heretofore set out, were pleaded; and a total failure of consideration was alleged. On a trial thereon verdict was rendered by a jury, in favor of plaintiff, in the sum of $68.39; and there was a verdict in favor of defendant in the sum of $260. Judgment was duly entered on this verdict in favor of plaintiff against all defendants in the sum of $68.39 and in favor of defendant O'Dell against plaintiff in the sum of $190.61. From this judgment this appeal is prosecuted by plaintiff.

The justice of the peace before whom the cause was first filed and tried had jurisdiction only to the extent of $500. Section 2373, Rev.St.Mo.1929, Mo.St.Ann. § 2373, p. 2474 (amendment of April 5, 1937, Laws Mo.1937, p. 212, Mo.St.Ann. § 2373, p....