Wilder National Tavern System v. Wilder
| Decision Date | 21 June 1929 |
| Docket Number | No. 20803.,20803. |
| Citation | 18 S.W.2d 114 |
| Parties | WILDER NATIONAL TAVERN SYSTEM, Inc., v. WILDER. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.
"Not to be officially published."
Action by the Wilder National Tavern System, Inc., against A. B. Wilder, who filed a counterclaim. From an adverse judgment, plaintiff appeals. Affirmed.
Davis & Todd, of St. Louis, for appellant.
Wurdeman, Stevens & Hoester, of Clayton, for respondent.
This suit was based upon a note executed by the defendant to the plaintiff dated September 10, 1926, for the sum of $809.45, due on demand after date, with interest thereon from demand at the rate of 6 per cent. per annum, alleging that demand was made on January 3, 1927. To the petition the defendant filed an amended answer and counterclaim, admitting the execution and delivery of the note, but setting up by way of counterclaim that, at the time of delivery of the note, it was agreed, in consideration of the signing thereof, that plaintiff would make an adjustment with defendant to cover the depreciation on an automobile purchased by him and used by the defendant in the business of plaintiff, which it was alleged amounted to $400, and for $100 that the defendant paid to an attorney to represent plaintiff when the plaintiff's company was threatened with a receivership suit. Plaintiff's reply to the amended answer and counterclaim was a general denial. No attack was made on defendant's pleading. There was a verdict for plaintiff for the face of the note, plus $48.56 interest, and verdict for the defendant on the counterclaim for $500. The appeal is prosecuted by plaintiff from the verdict on the counterclaim.
The first contention made by the plaintiff is that the court permitted the defendant, in cross-examination of one of plaintiff's witnesses, to interrogate the witness upon the defendant's counterclaim. We have examined the motion for new trial, and fail to find any error assigned therein upon this action of the court. The only assignment with reference to the admission or rejection of evidence is that the court erred in admiting incompetent, irrelevant, and immaterial evidence offered by defendant in support of said counterclaim over the objection of plaintiff, and that the court erred in rejecting competent, relevant, and material evidence offered by the plaintiff. Since the plaintiff's present contention is directed entirely to the fact that defendant was permitted to interrogate the witness on cross-examination while the plaintiff was putting in its case, and since that question was not presented in the motion for new trial, we have no right to consider it here. Hawkins v. City of St. Joseph (Mo. Sup.) 281 S. W. loc. cit. 422; Kirby v. Heaton, 315 Mo. loc. cit. 346, 286 S. W. 76; Fernandes Grain Co. v. Hunter, 217 Mo. App. loc. cit. 195, 274 S. W. 901; Gadberry v. Bolton (Mo. App.) 242 S. W. loc. cit. 690.
The plaintiff's next contention is that parol evidence is inadmissible to alter, aid, contradict, or vary the terms of an unambiguous negotiable instrument. An examination of the record discloses that, when the defendant was asked concerning when adjustment between the parties was to be made, and he had answered the question, the plaintiff objected, because proper foundation for that had not been laid, and later, when the witness was asked concerning the employment of counsel, and he stated it was in the fall of 1926, the plaintiff objected, unless he showed he had employed counsel and showed whether or not counsel was necessary. So far as we find, no objection was made to admission of any evidence on the ground alleged in this complaint of the plaintiff, and, in...
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