Winsor v. Schaeffer

• Decision Date: 03 February 1931
• Parties: FRED E. WINSOR AND COMPTON W. NOHL, RESPONDENTS, v. JULIUS E. SCHAEFER, APPELLANT
• Court: Missouri Court of Appeals

34 S.W.2d 989

224 Mo.App. 1220

FRED E. WINSOR AND COMPTON W. NOHL, RESPONDENTS, v. JULIUS E. SCHAEFER, APPELLANT

Court of Appeals of Missouri, St. Louis

February 3, 1931

Appeal from the Circuit Court of the City of St. Louis.--Hon. Frank Landwehr, Judge.

APPEAL DISMISSED.

Appeal dismissed.

Durham & Sparling for appellant.

(1) If any issue of fact is raised by pleadings, motion for judgment must be denied. Sullivan v. Bank (Mo. Sup.), 293 S.W. 129; State ex rel. v. Simmons Hdwe. Co., 109 Mo. 118, 151 L.R.A. 676; Steinberg v. Levy, 159 Mo 617. The issue as to whether note sued on was due at the institution of the suit was raised by the pleadings. Suit cannot be maintained on a debt not due at institution of suit. 8 C. J. 816; Jegglin v. Orr (K. C.), 29 S.W.2d 721; Brown v. Shocks, 27 Mo.App. 351; Mason v Barnard, 36 Mo. 391; Cheatham v. Lewis, 3 Johns 43; Turk v. Stahl, 53 Mo. 438; Heard v Ritchey, 112 Mo. 516; Dillinger v. Kelley, 84 Mo. 561. (2) The answer properly raised question of fact as to maturity of note. Collateral agreements may be set up as a defense as between original parties to the instrument. 8 C J., par. 740 et seq., 1015; Wagner v. Diedrich, 50 Mo. 484; Bank v. Laird, 188 Mo.App. 322; Farmers Bank of Farley v. Stamper, 250 S.W. 959. (3) It was undenied that the note was not due at institution of suit; that plaintiffs had wrongfully foreclosed the pledged collateral and had bought it in and were asserting title to it. This justified a reformation of the note vacating such sale and clearing defendant's title. When a suit is brought on a cause of action before the same is past due the proceeding is not only wrong, but the defendant aggrieved thereby may avail himself of the objection by prosecuting his writ of error, even after judgment by default. Mason v. Barnard, supra.

Buder & Buder and G. A. Buder, Jr. for respondent.

(1) A motion for new trial must set forth and contain the reasons or assignments relied upon in support thereof so definitely and specifically that the attention of the trial court will be directed to the precise grounds upon which the movant relies. Blanket assignments couched in general terms do not afford the trial court an opportunity to correct alleged errors and are therefore of no avail. Sec. 1267, R. S. 1919; Raifeisen v. Young et al., 183 Mo.App. 508; Byrd v. Vanderburgh, 168 Mo.App. 112; Bouillon v. Laclede Gas Light Co., 165 Mo.App. 320; Falloon v. Fenton, 182 Mo.App. 93; Osage Tie & Timber Co. v. Gorg-Murphy Timber & Grain Co., 191 S.W. 1026. (2) A party who voluntarily acquiesces in a judgment or decree, recognizes the validity thereof, or does anything which is inconsistent with the right to appeal, thereby waives his right to have such judgment or decree reviewed by an appellate tribunal and will be estopped to allege or assign error in such judgment or decree. 2 Cyc., p. 656; K. C. F. S. & M. Railroad v. Murray, 57 Kas. 697; King v. Campbell, 107 Mo.App. 496; Homebuilders' Lumber Co. v. White, 183 P. 725; City of Lawton v. Ayres, 40 Okla. 524; Rector etc. v. Rector etc., 119 N.Y.S. 328. (3) When the judgment in a case is for the right party and no other result could fairly be arrived at or sustained, any technical error in the case will be deemed to be immaterial, harmless and non-prejudicial to the defeated party and will not be cause for reversing said judgment. Secs. 1276 and 1513, R. S. 1919; Cross v. Gould, 131 Mo.App. 585; Trainer v. Sphalerite Mining Co., 243 Mo. 359; Phillips v. Pulitzer Publishing Co., 238 S.W. 127; Moloney v. Boatmen's Bank, 288 Mo. 435; Shinn v. United Railways Co., 248 Mo. 173; Koehler v. Franklin Paving Co., 269 S.W. 400; Peppers v. St. Louis & San Francisco Ry. Co., 295 S.W. 757; Koenig v. Heitz, 282 S.W. 107; Woody v. St. Louis-San Francisco Railway Co., 104 Mo.App. 678; Daggs v. Smith, 193 Mo. 494. (4) An appeal which is without merit and apparently attempted for the purpose of vexation and delay will subject the appellant to the payment of damages in a sum not exceeding ten per cent of the amount of the judgment. Sec. 1515, R. S. 1919; Osborne v. Oliver, 23 Mo.App. 667; Lindenschmidt v. Vallee, 23 Mo.App. 594.

NIPPER, J. Haid, P. J., and Becker, J., concur.

OPINION

NIPPER, J.

This is a suit on a note. Plaintiffs, in their petition, allege that defendant on December 20, 1928, duly made, executed, and delivered to the plaintiffs in the City of St. Louis a certain promissory note of said date, whereby, for value received, he promised to pay to the plaintiffs on January 28, 1929, the sum of $ 2,126.67, with interest thereon from date at the rate of six per cent, and that defendant has failed and refused to pay same.

Defendant's answer admits the execution of the note, but states that, in equity and good conscience, it is not yet due, and that plaintiffs are not entitled to judgment; and then sets out the reasons therefor. Defendant alleges that on the 30th of November, 1927, he purchased all the stock in Julius E. Schaeffer, Florists, Inc., then owned and paid for by plaintiffs herein, and in payment thereof executed a promissory note payable to plaintiffs; that said note was dated November 30, 1927, for $ 3,190, and payable on December 20, 1928; that he pledged with plaintiffs, as collateral security, a certificate for thirty-five shares of the capital stock of Julius E. Schaeffer, Florists, Inc.; that this note provided that in case of nonpayment at maturity, the holder was vested with full authority to transfer, sell, or convey, the collateral, or any collateral substituted or added to the above, at public or private sale, with or without notice or demand, and that the holder was authorized to purchase said collateral when sold for his own protection, the proceeds of the sale to be applied to the payment of the note, the surplus, if any, to be paid to the maker.

There are a number of equities set up in the answer. Defendant also filed a cross-petition and prayer for affirmative relief, asking the court to reform the note and contract to comply with the agreement of the parties, to cause to be endorsed on said note an extension of maturity, and to declare the pretended sale and purchase of the stock by plaintiffs null and void, and that defendant be declared the owner of the stock pledged as collateral security for the note.

Plaintiffs then filed a motion for judgment on the pleadings. The court sustained this motion, and entered judgment for plaintiffs for the amount sued for. On the same day this motion was sustained and judgment rendered on the pleadings, and immediately after such judgment was...