text:
    David M. CARNES, Individually, and John H. Johnstone, d/b/a Johnstone Clinic, Relators, v. Honorable R. E. CUNNINGHAM, District Judge of the District Court, El Paso County, Texas, Sixty-fifth Judicial District, and Estanislado H. Carbajal, Jr., as Next Friend for Steven Carbajal, a minor child, Respondents.
    No. 5537.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 27, 1961.

      Kemp, Smith, Brown, Goggin & White, El Paso, for relators.
    Alan V. Rash, El Paso, for respondents.
   LANGDON, Chief Justice.

Relators were defendants in a damage suit brought by respondents. In the pleadings filed below, plaintiff alleged that the minor child broke his left arm on August 5, 1960; that defendants were employed to treat and cure such minor child of his broken arm; that defendants accepted such employment and undertook to treat the child. It was alleged that defendants negligently and carelessly applied a cast to the child’s arm so as to be too tight, causing the child discomfort and pain; that defendants’ attention was called to this condition and they attempted to loosen the cast by cutting the cast with an electric oscillating cast cutter; but, in doing so, operated the cutter in such a negligent and careless manner that the blade of the saw ripped and tore open the child’s arm, laying the skin open and subsequently causing the child to become sick and run a fever and to suffer pain; that defendants negligently failed to discover that the arm of plaintiff’s minor child had been cut by the cast cutter until several days later. In addition to the specific acts of negligence plead, plaintiff also plead the doctrine of res ipsa loquitur.

The case was submitted to the jury on nine special issues, only four of which were answered, the jury being unable to agree on the remaining issues. Relators contend that the jury findings on the issues actually answered entitle Relators to a judgment in favor of defendants as a matter of law. Relators’ motion for judgment on the verdict was denied, and the trial court granted plaintiff’s motion for mistrial. Relators now seek to obtain a writ of mandamus to-compel the trial judge to set aside the order of mistrial, and to enter judgment on the verdict in favor of Relators.

Since a proper disposition of this case involves and requires an interpretation of the jury’s findings, the four special issues on which findings were made are set out below:

“Question No. 1.
“Do you find from a preponderance of the evidence that on or about August 8, 1960, the Defendant, Dr. David Carnes, cut Plaintiff Steven Carbajal’s left arm with an Electric Oscillating Cast Cutter? Answer: ‘Yes’ or ‘No.’’
“We Answer: Yes
“Question No. 2.
“Do you find from a preponderance of the evidence that Plaintiff Steven Carbajal suffered physical injuries as a direct and proximate result of being cut with the Electric Oscillating Cast Cutter, if you have found he was so-cut? Answer: ‘Yes’ or ‘No.’
“We Answer: No
“If you answer ‘Yes’ to Question-Number One, then, but not otherwise, answer the following question:
“Question No. 3.
“Do you find from a preponderance of the evidence that such cutting of the left arm of the Plaintiff Steven Car-bajal with the Electric Oscillating Cast Cutter, if his left arm was so cut, was negligence? Answer: ‘Yes’ or ‘No.’
“We Answer: No
“If you answer ‘Yes’ to the preceding question, then, but not otherwise, answer the following question:
“Question No. 4.
“Do you find from a preponderance of the evidence that such negligence, if negligence you have found, was a proximate cause of the injury, if any, to his left arm? Answer: ‘Yes’ or ‘No.’
“We Answer: No”

“The Respondents contend that, because the jury failed to answer all the issues submitted, the trial judge was acting within his discretionary authority in granting plaintiff’s motion for mistrial and in overruling defendants’ motion for judgment on the verdict; and, therefore, a writ of mandamus will not lie. It is also contended that the jury’s answers to Special Issue No. 1 and to Special Issue No. 2 are in fatal and irreconcilable conflict and destroy each other; that the jury unnecessarily answered Special Issue No. 4, conditionally submitted upon an affirmative answer to Special Issue No. 3, which was answered in the negative, and that such answer is surplusage which the trial court was required to disregard; that no judgment on the verdict could be entered based upon the one remaining answer to Special Issue No. 3.

It is a general rule, and one recognized by Texas courts, that whenever the rendition of the judgment involves no judicial discretion, but is purely ministerial, the same may be compelled by mandamus. However, trial courts are vested with broad discretion relating to the control and disposition of their dockets, and the authority of appellate courts to intervene and to order a judge to enter judgment on a jury verdict is exercised with this extensive discretion in mind.

In the case before us, the jury failed to answer issues inquiring whether the defendant, Dr. David Carnes, operated the electric cast cutter in a negligent manner; whether the plaintiff failed to take proper care of the minor child after such child received a broken arm; and whether such failure, if any, was the sole proximate cause of the injury, if any, complained of in this suit. It also failed to answer the damage issue.

If we assume that the cut suffered by the child, which the jury found was actually inflicted by the cast cutter, was an injury (regardless of how insignificant the cut may have been), then such finding is in conflict with the jury’s finding that the child suffered no physical injury as a result of being cut with the cast cutter. We believe the answers given to Issues 1 and 2 destroy each other by reason of the conflict, and that Special Issue No. 3, standing alone, amounts to a general charge and is not sufficient to support a judgment in favor of Relators. Further, plaintiff plead and relied upon the doctrine of res ipsa loquitur as a ground of recovery (in addition to the specific acts of negligence alleged in their pleadings), which theory of recovery was not set at rest because of the jury’s failure to answer all of the issues submitted to it. Since the jury found that the defendant, Dr. Carnes, did cut the child’s arm with the electric cutter, and impliedly found that the defendant Dr. Carnes controlled the instrument that caused the cut, we think the court itself, in considering Relators’ motion for judgment on the jury verdict must necessarily have reviewed the evidence to-determine whether the cast cutter, in the ordinary course of events, if properly constructed, maintained and operated, would have caused the cut upon the arm of the child. If the court concluded (as it impliedly did) that the cast cutter under such circumstances would not have cut the arm of the child, the cut alone, in such case, is sufficient to raise an inference of negligence.

It is true that Courts of Civil Appeals have authority to issue writs of mandamus to compel a district judge to enter a judgment where the undisputed facts support and require the rendition of the one judgment; or, where the jury has found all the facts in issue necessary to the rendition of such judgment. In such case, the rendition of judgment is purely ministerial, and may be compelled by mandamus. Art. V, sec. 6, Vernon’s Ann.Tex.Const.

The case before us does not involve a situation where the court has refused to act at all. Here, Relators filed their motion for judgment, and it was considered and acted upon by the court. A writ may issue to compel the exercise of discretion where there has been a refusal to act at all, but it will not be granted for the purpose of directing the exercise of discretion in any certain manner. McDowell v. Hightower, 111 Tex. 585, 242 S.W. 753; O’Meara et al. v. Moore, 142 Tex. 350, 178 S.W.2d 510.

The burden is upon Relators to show a clear and absolute right to the judgment sought to be compelled by mandamus. Where no clear duty to enter a particular judgment is shown to exist, the entry of judgment involves the exercise of judicial discretion and does not call for the performance of a purely ministerial act.

The court had before it two motions — the Relators’ motion for judgment, and plaintiff’s motion for mistrial. The jury had failed to answer all the issues submitted, and a possibility of conflict existed in the answers actually found by the jury.

The trial judge, after reviewing the evidence or lack of it, might, with propriety, have granted Relators’ motion for judgment, or denied it and granted plaintiff’s motion for mistrial, as he in fact did. In such case, the action of the trial court involves the exercise of judicial discretion, and mandamus will not issue to compel a court to render a particular judgment when that court is of the opinion that no judgment at all should be rendered, and has accordingly granted a mistrial. Southwestern Bell Tel. Co. v. Shell, Tex.Civ.App., 266 S.W.2d 476; Firestone v. Hall, Tex.Civ.App., 143 S.W.2d 797.

Relators’ application for writ of mandamus is denied.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    John GATES et ux., Appellants, v. Lucille HAMPTON, Appellee.
    No. 7080.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 18, 1961.

      R. D. Oswalt, Vernon, for appellants.
    Cleddie A. Palmer, Vernon, for appellee.
   NORTHCUTT, Justice.

This is a suit brought by John Gates and wife, Lula Gates, as plaintiffs, in the form of trespass to try title and also alleging an oral contract whereby Lucille Hampton, a widow, agreed to sell certain real estate to the plaintiffs. The plaintiffs also pleaded a written memorandum made by the defendant, Lucille Hampton, but not signed by her, which memorandum recited the major portion of such agreement or contract of sale. It was the contention of the plaintiffs that the defendant agreed to sell the real estate in question to the plaintiffs for the sum of $2,500 to be paid for at the rate of $25 per month, payable on the 14th of each month and that deferred payments were to bear interest at the rate of 10% per annum until paid. It is pleaded by the plaintiffs that they entered the possession of the premises in question on or about August 1, 1955 and continued to use and occupy the same as their home until on or about the first day of May, 1960, when the house located on said real estate was destroyed by fire.

Plaintiffs also allege that the defendant carried fire insurance on said property for an amount more than sufficient to pay the unpaid portion of the purchase money; that the defendant had collected the insurance and consequently the defendant had been paid in full the contract price of said sale; that defendant refused to execute and deliver to the plaintiffs a good and sufficient warranty deed conveying the premises to the plaintiffs and that the plaintiffs had been damaged in the sum of $3,000. Plaintiffs then prayed for the title and possession of the real estate in question and their damages in the sum of $3,000. The defendant answered denying all the contentions made by the plaintiffs but contended that the plaintiffs were renters only. The defendant contended that at one time the plaintiffs discussed buying the real estate in question, and requested the defendant to write the memorandum, pleaded by plaintiffs, so that the plaintiffs could send the same to the plaintiffs’ son-in-law and daughter to see if they would help the plaintiffs in purchasing the property. It will be noticed that the memorandum shows the son-in-law and daughter were set out in the memorandum in the same capacity as the plaintiffs. Defendant contended no agreement was ever made as to the purchase price and that the transaction was never consummated because the plaintiffs did not raise an adequate sum for the down payment. The defendant also pleaded the statute of frauds.

The case was tried to a jury, and at the close of all the evidence, the trial judge instructed the jury to return a verdict for the defendant. Consequently, judgment was entered that the plaintiffs take nothing by their suit. From that judgment the plaintiffs perfected this appeal. The parties will be referred to as they were in the trial court.

The plaintiffs present this appeal upon five points of error, contending the court erred in instructing a verdict for the defendant in holding that the evidence did not show a clear unambiguous contract; in-holding that the evidence did not show that the plaintiffs had paid all of the consideration required; in holding that the plaintiffs-did not show that permanent and valuable improvements were made so as to remove the alleged parole contract from the operation of the Statutes of Frauds, and in-finding that the evidence when taken in its most favorable light did not establish or prove that all of the consideration required by the alleged parole contract for the purchase of real property in question.

The written memorandum does not state any price the property was to be sold for, and states the monthly payments were to be $45 per month, payable on the 14th of each month. The pleadings and also the evidence of the plaintiffs is so contrary to the written memorandum that the memorandum will not be further considered. The contention of the plaintiffs was that the monthly payments were to be $25 per month payable on the 14th of each month. The record shows that the plaintiffs never made any payments on the 14th as they contended they were to be made.

There is nothing in the record to show the value of any improvements that plaintiffs said they placed upon the property in question. Mr. Gates testified he did a lot of papering and cardboarding and painting on the inside of the house and put a pretty good fence around it, posts and everything. Mrs. Gates testified they did pasteboarding in the whole front room and did some painting. They got cardboard boxes and put them up. When Mrs. Gates was asked about the improvements on the outside, in the way of a fence, she never acknowledged any fence was built but stated that they kept it clean and cut the weeds and that Mr. Gates did get out and fill in the holes. There is nothing in the record to show that Mrs. Hampton knew about or authorized any such improvements.

During the time the plaintiffs were living in the property, and now contending they were buying the property, the defendant placed a water heater on the property and did other improvements. It is stated in the case of Dawson v. Tumlinson et al., 150 Tex. 451, 242 S.W.2d 191, 192, by the Supreme Court of Texas as follows:

“The law in this state as to parol sales and parol gifts of real property was fully and carefully stated in Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216, and the law as there stated has been consistently followed. Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.2d 147; Powell v. Wiley, 141 Tex. 74, 170 S.W.2d 470; Maloy v. Wagner, 147 Tex. 486, 217 S.W.2d 667. ‘From an early time it has been the rule of this court, steadily adhered to, that to relieve a parol sale of land from the operation of the statute of frauds, three things were necessary: 1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And 3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements,' the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced. * * *
“ ‘Each of this three elements is indispensable, and they must all exist.’ 111 Tex. 122, 126-127, 229 S.W. 1114, 1116.”

See also Garza v. Martinez Mercantile Co., Inc., Tex.Civ.App., 208 S.W.2d 567.

In our opinion the evidence in this case does not show sufficient facts to take an oral contract of sale of land out of the Statute of Frauds. Vernon’s Civil Statute of Texas Art. 3995.

The judgment of the trial court is affirmed.


author: SPERRY, Commissioner.

text:
    Glen E. NORMAN and Edna J. Norman, Plaintiffs-Appellants, v. Francis O. COPE, Defendant-Respondent.
    No. 23372.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.
    Thaine Q. Blumer, Kansas City, for appellant.
    Robert F. Middleton, Russell, Brown & Middleton, Nevada, Mo., for respondents.
   SPERRY, Commissioner.

Plaintiffs agreed in writing to purchase a 160 acre farm in Vernon County for the total price of $12,500, $2,000 of which was paid down at the time the contract was signed. Plaintiffs sued for recovery of the $2,000 above mentioned on the theory that defendant had breached the contract. Plaintiffs failed to appear on the date set for consideration of motions filed by defendant and the court sustained defendant’s motion to dismiss the petition on the ground that it failed to state a cause of action upon which relief could be granted. Plaintiffs have appealed.

The petition was filed Aug. 17, 1960, (attached thereto was a copy of the contract) and the following allegations appear therein:

“2. That on August 8, 1959 plaintiffs and defendant entered into a contract, copy of which is attached hereto and made a part hereof as if more fully set out herein, by the terms of which plaintiffs agreed to purchase, upon certain conditions, and defendant agreed to sell certain real estate described in said instrument attached hereto and more commonly referred to as the “Lynn 160 Acre Farm”; that by the terms of said agreement plaintiffs were to pay the total sum Twelve Thousand Five Hundred Dollars ($12,500.00), Two Thousand Dollars ($2,000.00) of which was paid in cash to the defendant on August 8, 1959; One Thousand Dollars' ($1,000.00) of which was to be paid on or before February 8, 1960, and the ' balance to be paid in monthly payments as described in said contract; by the terms of said agreement defendant was to deliver to plaintiffs within ten (10) days from August 8, 1959, an abstract showing merchantable title in and to the above described land and plaintiffs were thereafter granted twenty (20) days to examine said abstract; defendant further was to execute and deposit with the above mentioned contract a good and sufficient warranty deed conveying said premises to plaintiffs free and clear of any and all encumbrances; that defendant did deliver within the time prescribed above to the plaintiffs an abstract title to said premises; that upon examination thereon it was determined that defendant did not have merchantable title to said property for the reason that the same was encumbered; that defendant failed to pay and release said encumbrance and failed and refused to deliver to plaintiffs a warranty deed showing nó encumbrances ; that thereafter defendant demanded of plaintiffs a payment of $1,360.90 on February 8, 1960 contrary to the terms of the contract above mentioned which provided for a payment by plaintiffs in the amount of $1,000.00; that plaintiffs have demanded of the defendant delivery of a warranty deed showing no encumbrances and have tendered to pay $1,000.00 as of February 8, 1960, and to execute a deed of trust for the balance of said purchase price, but defendant has refused, failed and neglected to perform his part of the contract as herein mentioned; that said contract is, therefore, null and void, and that plaintiff is entitled to the recovery of the payment to defendant of $2,000.00.”

It is alleged in the petition that a written contract was entered into between the parties respecting the sale by defendant to plaintiffs of a specifically described parcel of land; that the respective parties assumed stated mutual obligations in connection with the transaction; that plaintiffs had performed their obligations thereunder, and had paid $2,000 in cash to defendant and tendered other moneys as required by the contract; that the defendant had failed and refused to-tender to plaintiffs an abstract and deed showing and conveying to them a merchantable title to the property which was the subject of the transaction. The petition, therefore, stated a cause of action on its face. State ex rel. Fletcher v. Blair, 352 Mo. 476, 178 S.W.2d 322, 324; Zeppenfeld v. Morgan, Mo.App., 185 S.W.2d 898, 901.

It is also alleged in the petition that defendant, under the contract, agreed to deliver an abstract showing himself to be vested with a merchantable title to the described property; that the abstract showed the property to be encumbered by a deed of trust. If the property was so encumbered, plaintiff did not have a merchantable title. Montgomery v. Wise, et al., 138 Mo.App. 176, 120 S.W. 100, 105; Ott v. Pickard, Mo.Sup., 237 S.W.2d 109, 112; Thomas J. Johnson & Co. v. Mueller, 356 Mo. 1109, 205 S.W.2d 521, 527. It was alleged that defendant agreed to deliver to plaintiffs a warranty deed conveying the property free of encumbrances and his failure and refusal to do so, within the time specified or within what the jury might find to be a reasonable time, constituted a breach of the contract pleaded.

However, the record discloses that defendant had, after the petition was filed, submitted to plaintiffs a list of questions, requiring answers in the nature of admissions, which plaintiffs failed to answer within the specified time. The record discloses the follpwing entry: “Thereafter, towit: on the 3rd of October, 1960, the court takes up and considers motion to dismiss and doth make the following entry thereon:

“ ‘Oct. 3, 1960 — Facts requested to be admitted heretofore filed, and not admitted, are ordered to be taken as true. Motion to dismiss sustained, and this case ordered dismissed with prejudice and at plaintiffs’ cost.’ ” On a motion to dismiss for failure to state a cause of action, the facts stated in the petition alone are to be 'considered. It is error to take into consideration any other matters. Hudson v. Jones, Mo.App., 278 S.W.2d 799, 804-805; Coble v. Economy Forms Corporation, Mo.App., 304 S.W.2d 47, 50.

The judgment is reversed and the cause is remanded with directions that it be reinstated and further proceedings had consistent with this decision.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court.

All concur.


author: BROADDUS, Judge.

text:
    Nickols LOULOS, Appellant, v. UNITED SECURITY INSURANCE COMPANY, Respondent.
    No. 23301.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.
    Homer A. Cope, Donald W. Browne and Walter A. Raymond, Kansas City, for appellant.
    Richard P. Sprinkle, Sprinkle, Carter, Sprinkle & Larson, Kansas City, for respondent.
   BROADDUS, Judge.

This is an action upon a contract of insurance covering loss or damage to an automobile. Upon a trial to a jury a verdict was returned for plaintiff for damages to his car in the sum of $843.64, with interest in the amount of $114.78, a penalty of $84.-36 and an attorney’s fee of $1,000. Upon motion for new trial by defendant the court held that the evidence did not justify the submission of penalties and attorney’s fees, and ordered a remittitur of the attorney’s fees and penalty. Upon plaintiff refusing to remit in accordance with such order the court granted defendant a new trial. Plaintiff has appealed from such order.

The facts are briefly as follows: On October 26, 1957, plaintiff bought a used Ford automobile for which he paid $1,450. That evening plaintiff met defendant’s agent, E. G. Paul, at the motel of his father-in-law, Edward Thornton, and applied for a full coverage policy on his automobile. Paul filled out the policy application for six months’ insurance in triplicate, which plaintiff signed. Plaintiff paid $20 cash on the premium and his father-in-law offered to pay the balance of the premium for six months which in all amounted to $67, or an additional $47. Defendant’s agent Paul said it was not necessary that all the premium be paid at that time and agreed to wait for the balance of the premium until plaintiff’s next pay day, a week or ten days later. That was a customary procedure. Plaintiff was given a copy of the application. The original application, together with the agency check for the entire six months’ premium was mailed to defendant company by its agent Paul. Paul signed a fifteen day binder as agent of defendant and advised plaintiff the insurance was effective immediately. The exact language of the “binder” clause is: “Any insurance bound is limited to a period of 15 days from its effective date and expires on the last day of such limited period.” Plaintiff on the next pay day gave $47 to his father-in-law who in turn delivered said sum to defendant’s agent Paul on November 8, 1957, in payment of the balance of the six months’ premium due on the policy. At that time the policy had not arrived from the company for delivery to plaintiff, but its agent had received no notice of rejection of plaintiff and assured paintiff that he was covered. Just after receiving the balance of the premium on November 8, Paul’s wife, who worked with him, called defendant’s home office about plaintiff’s policy and was informed that the application and check had not been received. Paul then called defendant’s casualty department and was informed that it would be all right for him to forward his copy of plaintiff’s application with a new agency check for the premium. Paul stopped payment on the original premium check and forwarded his copy of the application and new check for payment of a six months’ premium. As the policy did not come plaintiff’s father-in-law called Paul and inquired about the policy and was assured by Paul that he would take care of everything.

On December 14, 1957, plaintiff had an accident in which his car was overturned and was badly damaged. Plaintiff notified defendant’s agent Paul that night. The next day Paul notified defendant’s claim department of plaintiff’s accident and the damage to his car.

On December 10, 1957, Paul received a telephone call from a Mr. Phillips in defendant’s office advising that defendant could not accept plaintiff’s application because he was under 25 years of age. On December 12, Paul received a letter from defendant to like effect. At the time of receiving said messages Paul was very busy and had a plane reservation to go to Chicago. As a result Paul did not notify plaintiff of defendant’s position until he returned from his trip and until after plaintiff’s accident.

On December 16, 1957, Paul undertook to return the premium to plaintiff. Plaintiff was present when the tender was made but plaintiff’s father-in-law, Thornton, who had been handling the entire matter, rejected the offer, saying, “we don’t want the premium.”

Although defendant denied that plaintiff was insured, it had an appraisal made of plaintiff’s wrecked automobile. This was .done on January 19, 1958.

From the above facts it is clear that defendant’s motion for a directed verdict was properly overruled. Was the trial -court also correct in holding that it committed error in submitting the question of vexatious delay to the jury? Section 375.-420, V.A.M.S., which provides for penalties in the event of vexatious refusal by an insurer to pay a claim is highly penal and must be strictly construed. Scott v. Missouri Ins. Co., Mo.App., 246 S.W.2d 349, 355.

In the leading case of Non-Royalty Shoe Co. v. Phoenix Assurance Co., 277 Mo. 399, 422, 210 S.W. 37, 43, it is said: '“The defendant is to be allowed to entertain an honest difference of opinion as to its liability, or as to the extent of such liability under the contract of insurance, and .to litigate that difference.” (Emphasis supplied.) The court then quoted with approval from the much cited case of Patterson v. American Ins. Co., 174 Mo.App. 37, 44, 160 S.W. 59, 62, that “the penalty should not be inflicted unless the evidence and circumstances show that such refusal was willful and without reasonable cause as the facts appeared to be to a reasonable and prudent man before the trial; and merely because the judgment, after trial, is adverse to defendant’s contention is no reason for inflicting the penalty.” In other words, the defendant “has the right * * * to defend a suit with all the weapons at its command so long as it has reasonable ground to believe its defense is meritorious.” Suburban Service Bus Co. v. National Mut. Casualty Co., 237 Mo.App. 1128, 183 S.W.2d 376, 378.

With the above well-settled rules in mind, we turn to the facts of the instant case. The Ford automobile involved in the accident was a “used car”. Plaintiff had purchased it for the sum of $1,450. At the time of the accident it had been driven 40,650 miles. Plaintiff testified that he paid $700 to have the car repaired. He later traded it for a “1953 Packard” and “was allowed as the trade-in-value of the 1956 Ford around $900.” Defendant produced an expert witness who testified that the cost of completely repairing the Ford car on account of the damage done to it by reason of the accident would be $915.64.

Thus it clearly appears that the defendant had reasonable grounds to believe that the extent of plaintiff’s loss was not nearly as great as he claimed in his petition, to-wit: $1,960. That defendant’s belief was well grounded finds additional support in the jury’s verdict assessing plaintiff’s actual damage at only $843.64.

The order granting defendant a new trial is affirmed. All concur.


author: MAUGHMER, Commissioner.

text:
    Joseph A. RIEHLE, Appellant, v. BROADWAY MOTORS, INC., a Corporation, Respondent.
    No. 23305.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.

      Donald L. Mason, Mason, Gant & Gep-ford, Kansas City, for appellant.
    Henry G. Eager, Kansas City, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, of counsel, for respondent.
   MAUGHMER, Commissioner.

This is an action for damages based upon alleged fraudulent misrepresentation in the sale of a used automobile. The misrepresentation charged is that the defendant represented the accrued mileage of the vehicle to be 23,550 miles when in truth and fact it was in excess of 70,000 miles. The verdict of the jury as finally received, accepted and recorded, was for $55 actual and $250 punitive damages. Judgment accordingly was entered and plaintiff has appealed. Defendant has not appealed.

Three assignments of error are presented: (1) The Court erred in making verbal remarks to the jury after it had returned a verdict improper in form, said verbal remarks being in effect, a verbal instruction. (2) These oral remarks misstated the law on damages, misdirected on the method of assessing actual damages and was in conflict with the written instructions. (3) It was error to overrule plaintiff’s motion for a mistrial following defense counsel’s remarks made twice in the presence of the jury that it could find actual damages in the sum of $1.

Defendant Broadway Motors, Inc., is a corporation with its business quarters located at 3401 Broadway, Kansas City, Jackson County, Missouri, and is engaged in the business of selling new and used automobiles. On April 2, 1959, plaintiff and his wife, having looked at used cars elsewhere and three times at defendant’s used car lot, decided to make an effort to buy a green 1957 Ford Tudor Sedan which they had seen on defendant’s lot. Their dealings with defendant company were all with salesman Brendel. They had tried out this particular car, had driven it about 1½ miles and noted that the speedometer registered 23,500 miles plus. It carried a marked price of $1,495. Plaintiff offered $1,050 cash, plus his 1950 Chevrolet. This offer was accepted and the trade consummated. It is not contended that any verbal representations were made that the mileage shown on the speedometer was the true and actual mileage. However, plaintiff said that he and his wife, in the presence of Mr. Brandel, discussed the speedometer mileage reading. They testified that they relied upon the reading and would “not have bought anything but a low mileage car”. Mr. and Mrs. Riehle testified that “they had trouble with the car” almost immediately. It smoked and used an excessive amount of oil. They returned the car to Broadway Motors three or four times where work was done on it. Mr. Riehle said he paid “half of the material and half of the labor” — a total he thought of between $55 and $60. He had repair work done elsewhere, the aggregate repair costs being $261, and the automobile, he said, operated very well thereafter.

Richard G. Koenig was called as a witness on behalf of plaintiff. He testified that he was the former and original owner of the 1957 Ford involved in this controversy; that he bought the vehicle new in December, 1956; that he owned and operated it until December, 1958, when he traded it to defendant company and that when he traded, the speedometer showed a reading of more than 70,000 miles — he thought 70,900 miles. He said that three or four weeks later while his automobile was being serviced at Broadway Motors he noticed his old car standing on the lot and went over to look at it. At that time he noted the speedometer showed approximately 50,000 miles.

Four witnesses who qualified as experts gave their opinions as to whether or not the miles a used automobile had been driven is an accurate yardstick by which to measure and determine its value. Their expressed views may, we think, be summarized this way: Mileage alone is not a sure and safe criterion by which to measure value. One automobile of the same make and vintage with 70,000 miles which has been properly maintained, may be a more serviceable unit and more valuable than one driven only 23,000 miles which has been abused and has not been properly and promptly serviced. Other tests are more important than the miles driven. However, mileage is one determinative factor and most prospective buyers regard it as of high importance. Mr. Robin G. Bentrup, owner of Broadway Motors, and his salesmen stated that they had not changed the speedometer reading.

The case was submitted to the jury on both actual and punitive damages. It is not contended that the instructions submitting these issues were in any way improper or erroneous. After a proper instruction upon the measure of actual damages, the Court gave Instruction No. 3, which we examine more fully as an essential prelude to consideration of the principal question presented by the appeal. Instruction No. 3 charged the jury in part: “If you fad in favor of the plaintiff for actual damages in any amount * * * and you further find and believe that the defendant’s acts as submitted for your determination in Instruction No. 1, and upon which plaintiff’s right of recovery depends, were done maliciously, if at all, then in addition to compensation for actual damages, if any, you also may award plaintiff such amount as punitive damages as you may deem proper under all the facts and evidence * * *” (Emphasis added). Instruction No. 2 told the jury to assess plaintiff’s actual damages “at such sum as you may believe and find from the evidence was the difference, if any, between the value of the automobile” which plaintiff purchased and its value if the mileage had been 23,550 miles. It is apparent, we think, that the instructions told the jury: (1) the actual damages, if any, must first be considered and determined by the jury and must be based upon the evidence; (2) punitive damages were not to be awarded unless and until actual damages were allowed.

After deliberation the jury returned a verdict which we set out verbatim:

“We, the jury, find the issues for the plaintiff and against the defendant and do assess his actual damages at blank dollars, and we further find the issues for the plaintiff and against the defendant for punitive damages and do assess his punitive damages at $250.00. Signed, Mr. Goodwin, Foreman.” Whereupon, the following occurred:

“The Court: Members of the jury, under the instructions of the Court, there must be some finding for actual damages; that is, if you are going to find the issues for the plaintiff on the count of punitive damages, there must be some finding with respect to the actual damages. And the amount of the actual damages, if any, is entirely up to the discretion of the jury.

“Mr. Eager: If the Court please, may I ask that you charge them, since you have instructed that, not in writing, that you instruct them they may find the sum of $1.00 actual damages?

“The Court: They may find any amount actual damages that they want and they feel the evidence would warrant.

“Mr. Eager: Including one dollar.

“The Court: What I am trying to tell you is that in order to find the issues for the plaintiff on the matter of punitive damages there must be a finding in favor of the plaintiff on actual damages, and that amount can be whatever you find under the evidence the plaintiff would he entitled to and the amount is a matter within your discretion and jurisdiction. So I will hand you back the verdict and let you go back to work a little more. (Emphasis added). (Whereupon, the jury again retired to their room to deliberate on their verdict. The following proceedings were had and entered of record Outside the Presence and Hearing of the Jury) :

“Mr. Eager: Let the record show that the defendant objects to the Court’s oral instructions here as not in writing, and in failing to indicate to the jury to specifically retire and reconsider the instructions as a whole, and in failing specifically to tell them actual damages may be in any sum whatsoever, including one dollar, and in failing to accept this as an illegal and inconsistent verdict under the evidence, or to supply nominal actual damages of one cent or one dollar. To all of which we except for the record on the grounds it is an attempt to coerce a verdict in favor of the plaintiff on actual damages in some sum which the jury heretofore has not found at all period.

“The Court: Are you asking that the Court declare a mistrial and discharge the jury?

“Mr. Eager: No, sir, I didn’t ask you that.

“Mr. Mason: Judge, I am. And I was waiting for Mr. Eager to ask for it. I made no comments prior to this time, Your Honor, because I thought it should be made out of the hearing of the jury. This is my first opportunity to take exceptions to the Court’s action and more fully to Mr. Eager’s action in making remarks and comments to the jury. I think Mr. Eager’s remarks, which are in the record and which should also show were made in the presence of the jury, as to they could find just one dollar, which he expressed, was highly inflammatory, prejudicial to this plaintiff. I move the Court declare a mistrial and discharge the jury, both on the grounds which I have enumerated and also on the basis that the verdict which the jury brought back was not in proper form, and. further, on the comments and oral instructions made by the Court to the jury.

“Mr. Eager: I want to point out that first verdict — actually I did not have a chance to see the original form, of course, the Court didn’t have a chance to give it to us, but that first verdict itself could very well be corrected by the Court supplying a clerical nominal amount of actual damages so that the verdict at that time, which was formally returned, would be fully consistent under the instructions. If they left it blank, it was, in effect, a finding of no actual damages. That is the burden of my observation. If they come back with $250.-00, I think it is coercion to that extent.

“The Court: Both motions will be overruled.”

Thereafter the jury returned a verdict signed by 10 of its members which in words and figures reads:

“We, the jurors, find the issues for the plaintiff and against the defendant and do assess his actual damages at $55.00 and we further find the issues for the plaintiff and against the defendant for punitive damages and do assess his punitive damages at $250.-00.”

Apparently the jurors did not understand that a finding of actual damages in some amount was a prerequisite to the allowance of punitive damages even though the written instructions did so state. The fact that the jurors did not readily grasp this direction as contained in the instructions is not, we think, the fault of the trial judge or even of the jurors. It is rather chargeable to our procedural system which requires long and rather involved written instructions instead of allowing the Court to charge the jury in simple language of short understandable sentences as is the practice in federal courts and in many of our state courts.

Appellant on appeal asserts: (1) The Court erred in making oral remarks to the jury which in effect amounted to verbal instruction which is forbidden, and (2) such verbal instruction on damages was a mistatement of the law, a misdirection and was in conflict with the written instructions. These two assignments may be considered together. In support of his position appellant invites our attention to Peck v. Springfield Traction Co., 131 Mo.App. 134, 110 S.W. 659; to Boyd v. Pennewell, Mo.App., 78 S.W.2d 456, and to Baker v. Fortney, Mo.App., 299 S.W.2d 563, 566. In the Peck case the Court, having given written instructions withdrawing certain evidence, made an oral statement in explanation of the withdrawal and reiterating that the jury should not consider it. The Appellate Court declared that while instructions should always be in writing, the making of such an oral statement could not have prejudiced the plaintiff, and affirmed the judgment. In the Boyd case the foreman of the jury came into the court room and engaged in a private conversation with the trial judge as to the allowance of costs. The exact conversation between the Court and the foreman was not recorded and although counsel were seated in the court room they were not invited to nor did they participate in the meeting even to the extent of hearing the discussion. The action of the trial court in granting a new trial was approved. In the Baker case a juror inquired if they should consider the fact that plaintiff had already received $1,600 as property damage from his own insurance company. The Court said: “Oh, certainly” — “You know we don’t beat insurance companies out of money in these courts unless there is a reason for it”. This comment was held to be a misdirection, misleading, confusing and erroneous. Neither of the holdings in these three cases determines the issues in our case.

In Kaimann v. Kaimann Bros. Inc., Mo. App., 182 S.W.2d 458, 462, the Court said: “Where the jury returns a verdict containing a patent ambiguity or defect, it is the duty of the court, at the time the verdict is read, to call the jury’s attention to such ambiguity or defect so that the jury itself may correct its verdict before it is received and judgment entered thereon.”

In Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487, 494, the jury presented the following inquiry to the Court: “What is the maximum fee or percentage basis allowed by Missouri law to plaintiff’s counsel?” The Court orally told the jury that there was no such law and that it was a matter of contract between the parties and the question should not be considered by the jury. On appeal the Supreme Court said: “The jury obviously needed further information and it was the duty of the judge to furnish it. Certainly our system of written instructions does not go so far as 'to require a trial judge to stand mute before "the jury when they make such a request for information. Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903, loc. cit. 908; Hoeffner v. Western Leather Clothing Co., Mo.App., 161 S.W.2d 722, loc. cit. 731; Meyer v. Dubinsky Realty Co., Mo.App., 133 S.W.2d 1106; Conway v. Kansas City Public Service Co., 234 Mo. App. 596, 125 S.W.2d 935. There was nothing incorrect in what the judge said to the jury, and if defendant considered that more specific directions were necessary, it should have offered an additional instruction. See Schonwald v. F. Burkart Mfg. Co., 356 Mo. 435, 202 S.W.2d 7, loc. cit. 17. We also agree that it was not necessary to discharge the jury because they asked the question. See McComb v. Vaughn, 358 Mo. 951, 218 S.W.2d 548.”

The St. Louis Court of Appeals said this on the question in Meyer v. Dubinsky Realty Co., 133 S.W.2d 1106, 1111, 1112: “So far as the giving of oral instructions was concerned, the court simply admonished the jury that if interest was to be allowed, it was for them to compute the amount, and that under our local practice the court was denied the right or privilege of saying anything to the jury about the amount of the verdict that they should return. Such remarks to the jury did not rise to the dignity of oral instructions upon any issue in the case, but to the contrary indicated quite unmistakably, not only a proper consideration on the part of the court for the function of the jury, but also a most careful and commendable attempt to handle the somewhat unusual situation before the court without doing the least prejudice to the rights of either party.”

Lindstrom v. Kansas City Southern Ry. Co., 202 Mo.App. 399, 218 S.W. 936, 937, was an action for both actual and punitive damages arising out of an alleged assault. The jury verdict was “For actual damages none” and assessed punitive damages at $500. This court, on appeal, said: “Clearly the verdict is contradictory, and no judgment could have been rendered thereon. Hoagland v. Amusement Co., supra, 170 Mo. 335, 345, 70 S.W. 878, 94 Am.St.Rep. 740; Mills v. Taylor, supra, 85 Mo.App. Ill, loc. cit. 116. The court, before receiving and recording the verdict, should have sent the jury back, with instruction to return a proper verdict, and, upon his failing to do this, and after the jury was discharged, he should have granted a new trial. Newton v. St. Louis & S. F. R. Railroad Co., 168 Mo.App. 199, 153 S.W. 495.” The Lindstrom case was approved by this court on the same point in Smith v. Rodick, Mo.App., 286 S.W.2d 73, 77.

We believe the Court not only had the right but was under a duty to direct the jury further in an attempt to secure a proper verdict. And if its explanatory remarks were made in the presence of counsel (as they were), if such oral instructions did not amount to misdirection, and if same were not confusing to the jury, then the Court should not be convicted of error for such action. We find nothing in what the Court said that is inconsistent with the written instructions or incorrectly states the method to be followed by the jury in arriving at its allowance of actual damages. It is true, as plaintiff claims, that the Court did say: “ * * * and the amount of the actual damages, if any, is entirely up to the discretion of the jury.” However, the Court went on and said: “What I am trying to tell you is that in order to find the issues for the plaintiff on the matter of punitive damages there must be a finding in favor of the plaintiff on actual damages, and that amount can be whatever you find under the evidence the plaintiff would be entitled to and the amount is a matter within your discretion and jurisdiction.” (Emphasis added). What the Court said at this particular time must all be considered together — not just part of its comment. Under the written instructions, under the evidence in this case, and under the law, the amount of the actual damages was for the jury to decide. We believe it might have ranged from a nominal figure upward to at least $261, the total amount expended for repairs. We decide these first two points against appellant.

The third complaint arises from the remarks of defendant’s counsel made while the jury was in the court room after its first verdict and during the Court’s explanatory comments. We again set out the record:

“Mr. Eager: If the Court please, may I ask that you charge them, since you have instructed that, not in writing, that you instruct them they may find the sum of $1.00 actual damages?

“The Court: They may find any amount actual damages that they want and they feel the evidence would warrant.

“Mr. Eager: Including one dollar.” The transcript does not recite that counsel’s comments were made out of the hearing of the jury. We conclude therefore that they were made in the presence and within the hearing of the jury. It is the recognized and accepted practice and procedure in Missouri for suggested instructions to be presented to the Court outside the presence and hearing of the jury. However, we believe that in this case, under the evidence and instructions, the jury could properly have returned a plaintiff’s verdict for actual damages in a nominal amount. This being true, defendant’s counsel could properly, in his regular argument, have told the jury it was authorized under the Court’s instructions to return a verdict of $1 actual damages. This being so, it is difficult to find error in his having said it at this later time, even though courtesy and orderly procedure required that his suggestions after submission, be made to the Court and not to or in the presence and hearing of the jury.

Moreover, the jury did not heed or accept the suggestion of defense counsel. It is not contended nor do we find the verdict to be either under or over what a fair consideration of the evidence required.

Besides, the granting of a new trial or directing a mistrial for the misconduct or indiscretion of lawyers (or jurors and a trial judge) occurring prior to rendition of a verdict, rests largely within the discretion of a trial court. State v. Taylor, Mo., 336 S.W.2d 49S. As stated in 66 C.J.S. New Trial § 33, p. 123: “On the other hand, a new trial for misconduct of counsel is not granted for disciplinary purposes but to correct a wrong resulting therefrom, and to afford ground for new trial it should appear that the misconduct probably influenced the verdict.”

Since we have found the trial judge’s remarks were explanatory of and not conflicting with the written instructions and were made with the purpose of helping the jury reach a proper and acceptable verdict, we do not think such remarks should have improperly influenced the verdict. The verdict itself, as we have reviewed the evidence, is a proper verdict and within reasonable limits. The trial judge by his actions in denying a new trial or a mistrial, has placed his stamp of approval upon the verdict and judgment, all in the exercise of his proper discretion. When a jury comes into court with a wholly unexpected question or suddenly presents the Court with an unusual situation, both the Court and counsel are presented with a sudden emergency. And under such emergency, we think that their acts and words should not void an otherwise proper verdict, which is reasonable as to results, unless manifest error is apparent, or prejudice appears, or the trial judge’s discretion in such matters has been shown to have been abused. It is our belief that the record and result here show none of these things.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGH-MER, C., is adopted as the opinion of the ■Court.

All concur.


author: CROSS, Judge.

text:
    Lyle D. SMITH and Edgar Berg d/b/a Red River Motor Company, Respondents, v. Adrian C. COWEN, Appellant.
    No. 23303.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.

      Robert P. Willenbrink, Kansas City, for appellant.
    Heilbron & Powell, Kansas City, for respondents.
   CROSS, Judge.

This appeal is from a judgment awarding plaintiffs compensation for property damage to an automobile sustained in a collision with another automobile driven by defendant.

Prior to the collision plaintiff Lyle D. Smith bought the automobile involved from plaintiff Edgar Berg, otherwise designated as Red River Motor Company. The transaction was a time payment conditional sales contract providing that Smith have possession and use of the car, but that legal title should remain in Red River until Smith paid the purchase price in full. While the contract was still in effect and when Smith was driving the car at a street intersection in Kansas City, Missouri, the vehicle collided with one driven by defendant Adrian C. Cowen. Smith filed suit in magistrate court charging Cowen with negligence as the cause of the collision and praying damages in the sum of $1,000. Before trial and by leave of court, Red River was added as a party plaintiff. The magistrate tried the case without a jury and gave plaintiffs a judgment for $590, from which defendant appealed. The circuit court also tried the case without a jury. That court found that plaintiffs were the real parties in interest, found the issue of liability in favor of plaintiffs, found that plaintiffs were damaged in the sum of $555, and accordingly rendered judgment in plaintiffs’ favor. Defendant again appeals.

Defendant first contends that the circuit court was without jurisdiction in this case. The argument runs thus: the circuit court’s jurisdiction, being derivative, is coextensive with that of the magistrate court; the magistrate court has no jurisdiction “to adjudicate a strictly equitable interest”; plaintiff Smith, as purchaser under a conditional sales contract, was not the legal owner but was only the equitable owner; the action filed in magistrate court was an attempt by Smith to have that court “adjudicate a strictly equitable interest”, —a function outside that court’s jurisdiction. This novel theory advanced by defendant is unsupportable.

This case is a simple action in tort to recover money damages only, as compensation for loss resulting from defendant’s negligence. There is no controversy as to the extent and nature of Smith’s interest in the vehicle. He asks for no adjudication that he owned an equity in the car. That fact is admitted by the defendant. The circumstance that plaintiff Smith is the automobile’s equitable owner does not convert the law suit into a proceeding in equity. If that were true, then all actions brought by mortgagors for damages to or for conversion or possession of the mortgaged chattels would also be suits in equity, barred from magistrate court jurisdiction. See Varney v. Jackson, 66 Mo.App. 348; Barnes Hospital v. Schultz, Mo.App., 90 S.W.2d 164; State ex rel. Wagner v. Moone, Mo.App., 33 S.W.2d 975; Whitlow v. Shortridge et al., Mo.App., 237 S.W. 834; Hoover v. Abell, Mo.App., 231 S.W.2d 217. Cases cited by defendant as examples of equitable proceedings improperly addressed to magistrate courts are not in point.

The sole issues in the case before us are as to the liability of defendant and the amount of money damages to be awarded if defendant be held liable. There is no prayer for equitable relief. None has been granted. The sum demanded as damages is $1,000. Therefore, we rule that the Magistrate Court of Jackson County had lawful jurisdiction of the case, under Section 482.090 V.A.M.S., and that derivative jurisdiction was conferred upon the circuit court by defendant’s appeal.

Defendant next assigns that the trial court erred by including plaintiff Red River as a co-beneficiary of the judgment against defendant, because “the entire record is devoid of any evidence concerning this plaintiff except in the judgment entry”. We agree that Red River was not entitled to the benefit of the judgment, but not for the reason urged by defendant. The evidence shows that on the same day the sales contract was executed, and prior to the collision, Red River had sold, assigned and transferred all its right, title and interest in and to the contract to the First National Bank of East Grand Forks, Minnesota. By that act Red River became a stranger in interest to the sales transaction, and to this cause of action. Red River was improperly joined as a plaintiff since it was neither a proper nor necessary party. It is of no comfort to defendant that the trial court erred in rendering judgment for Red River, because that act was in the disinterest of Smith — not defendant. Since the judgment for Red River is unsupportable, the merits of this appeal should be determined solely as between plaintiff Smith and the defendant Cowen.

Defendant contends that this action has not been prosecuted by the real party in interest, as required by Civil Rule 52.01, (Sec. 507.010 V.A.M.S.) V.A.M.R. Defendant argues that the First National Bank “was not only the real party in interest, but also a necessary party”. We cannot accept those views.

The specific purpose underlying the enactment of Section 507.010, and like statutes in most jurisdictions, providing that actions shall be prosecuted in the name of the real party in interest, is to change the strict rule of the common law requiring an action at law to be brought in the name of the person holding the legal title, where the beneficial or equitable interest is vested in another. The object of these statutes (and court rules to like effect) is to enable those persons to maintain the action who are directly interested in the subject matter of the litigation and entitled to reap its fruits. In this connection, it has often been stated to be the general rule that the equitable owner of a claim may sue as the real party in interest. See 39 Am.Jur., Parties, Sections 16-17. In order to determine the real party in interest in this case, we look to the facts as they appear on the record.

Plaintiff Smith alone suffered and bore the loss, as the sales contract provided by these words: “Buyer shall bear any loss or damage to said property”. It was Smith on whom fell the burden of repair and who expended substantial sums restoring the damaged vehicle to operable condition. Meanwhile, Smith continued to pay all installments as they came due, in full observance of the contract. Those installments were the sole entitlement of the assignee bank. The right to recover damages belonged only to Smith.

Under these facts, we conclude that Smith is the real party in interest and was such party when he filed his lawsuit in the magistrate court. We also hold that the bank has never been a necessary party. The present contention is manifestly inconsistent with these further facts shown in evidence: Smith paid the final installment in complete discharge of his debt eight months before the trial in circuit court. At the time of trial, Smith was both legal and equitable owner, solely and completely.

Pertinent to the instant point is the following statement from 61 C.J.S. Motor Vehicles § 500, p. 144: “The purchaser of an. automobile under a contract whereby the seller retains legal title until full payment of the purchase price, such as a conditional sales contract, having paid part of the sale price and being in possession of the property, may sue for injury thereto.”; likewise, the following from 78 C.J.S. Sales § 632, p. 441: “A conditional buyer of property may maintain an action to recover damages for injuries to, or destruction or loss of, the property resulting from the acts or omissions of a third person. * * * The buyer has a right of action both because of his possession and because of his special ownership; and an additional basis assigned for allowing him to maintain the action is that he has the same rights against third persons as a bailee”. Also in point is the case, Hadley v. Smith, Mo.App., 268 S.W.2d 444, 451, wherein the plaintiff, purchaser of an automobile, sued a third party for collision damages. Plaintiff did not have legal title to the automobile because the assignment of title had not been completed as required by statute. Nonetheless, the court held that he did have a special property interest in the automobile and the right to its possession, such as entitled him to sue the third party for its damage. The court said: “However, we hold that the plaintiff had a property interest in this car, even though he had no title. He had the right to possession. He had a right -under the statute to return the car in as good a condition as when received, to the seller, and recover the purchase price or, we think, he had a right, in equity, to compel the seller to convey title. The defendant is in no position to question the right of plaintiff to recover in this action for injuries caused by his wrong to such property rights as plaintiff did hold. A judgment in favor of plaintiff would bar any action by the title holder under the facts in this case”. (Our emphasis.) Also, see Reed v. Price, 30 Mo. 442; Watts v. Loomis, 81 Mo. 236; Robertson v. Welch, Mo.App., 246 S.W.2d 828; The MV Bull Calf et al., D.C.Mo., 66 F.Supp. 1019; Rosenfeld v. Continental Building Operating Co., D.C.Mo., 135 F.Supp. 465; National Surety Corporation v. Hochman, Mo. App., 313 S.W.2d 776; Buddington et al. v. Mastbrook, 17 Mo.App. 577.

Defendant finally assigns that the trial court erred in refusing him the privilege of cross-examining plaintiff Smith “as to his prior statements of estimate of damage”. This point has not been preserved for review. Defendant’s motion for new trial contains no complaint of any nature relative to the trial court’s ruling on the admission or exclusion of evidence.

We independently find that plaintiff Smith is the real and sole party in interest, that his automobile was damaged by reason. of defendant’s negligence, that he has thereby sustained loss and damage in the amount of $555, and that he is entitled to have and recover that sum from defendant. We specifically find that Red River is not entitled to have and recover any sum from defendant. In accordance with these findings, and as authorized by Civil Rule 83.13, we modify the judgment so that it reads as follows: “Now, therefore, it is Ordered, Adjudged and Decreed by the Court that plaintiff Lyle D. Smith have and recover from defendant the sum of Five Hundred Fifty-five Dollars ($555.00), together with the costs of this action, and that execution issue therefor”.

We affirm the judgment as so modified.

All concur.


author: , SPERRY, Commissioner.

text:
    Anna Mary MILLARD, Paul Millard, Thomas Millard, Herbert Ray Millard, Martha Millard Maddox and Elizabeth Millard Garrison, Appellants, v. William J. MEADOR d/b/a Meador Funeral Home, Respondent.
    No. 23309.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.
    Van Matre & Van Matre, Mexico, Mo., for appellants.
    Ralph L. Alexander, Columbia, Don C. Carter, Sturgeon, for respondent.
   , SPERRY, Commissioner.

Plaintiffs, Paul and Anna Mary Millard, were the father and mother of Carl F. Millard, deceased, and Thomas Millard, Herbert Ray Millard, Martha Millard Maddox and Elizabeth Millard Garrison were the sole surviving brothers and sisters, and nearest of kin, of deceased. Plaintiffs sued defendant, who was in the business of embalming and burying the dead, in fraud and deceit, seeking nominal and punitive damages.

Defendant denied the allegations of the' petition and counterclaimed for the sum of $939.10, for funeral services furnished deceased “at the special instance and request of plaintiffs” and alleged “that said charge for such service was reasonable and proper and which said sum plaintiffs agreed to pay”.

Trial to a jury resulted in a verdict for defendant on plaintiffs’ petition and for defendant on his counterclaim in the sum of $360. From the judgment thereon plaintiffs appeal.

Plaintiffs’ evidence was to the effect that deceased was, when he died, a member of the armed services of the United States, that he was unmarried and left no will; that, on December 29, 1956, decedent’s mother was notified of his death, at her home in Boone County, Missouri, by Lt. Marcus of the United States Air Force, telephoning from the base in Tennessee where deceased was stationed; that the family was notified to designate a funeral home to receive the body; that plaintiff, Herbert Ray Millard, requested defendant to receive and care for deceased’s remains when they arrived; that none of plaintiffs requested defendant to telephone to verify the death, or to inquire about life insurance; that defendant called on the assembled family in Centralia, Missouri, and told decedent’s mother that she would receive $10,000 insurance and asked the family who would pick out the casket; that one of plaintiffs asked defendant if the government doesn’t bury its soldiers and furnish caskets; that defendant said that the government had not furnished caskets since the Korean war; that plaintiffs then agreed to purchase a casket and service from defendant.

Plaintiffs’ evidence was to the further effect that Fuqua Funeral Home in Kentucky was under contract to furnish a casket for decedent; that a representative of that organization was contacted by defendant who instructed that the body be shipped in a “doe casket”, although he was advised at the time that the government would furnish, without cost, a suitable casket but he stated that the family did not want the government merchandise; that defendant telephoned Lt. Marcus, personal affairs officer at the air base, and requested the amount of life insurance deceased carried; that he was told that such information could only be given to the next of kin; that defendant then stated that deceased’s mother was present and wanted the information; that a woman promptly got on the line and identified herself as deceased’s mother, whereupon Lt. Marcus gave her the information desired. Deceased’s mother denied that she had such a conversation.

Defendant’s testimony was to the effect that Herbert Ray Millard contacted him at his place of business and requested that he call the Air Force Base and verify the death of Carl (which Herbert Ray denied); that he made the call while Herbert Ray was present; that he then told Herbert Ray that the government would furnish a casket or that the family could buy one 'from defendant; that defendant ■ later talked to the assembled family and told them that “if they wanted the government funeral it would be fine, or if they wanted to buy a casket from us, that would be fine”; that the family wasn’t sure if there was insurance; that he then called and talked to the Personal Affairs Officer, identifying himself and stating that he was calling for the family; that the officer then gave him the information about insurance which he reported to the family; that one member asked if the government did not bury its soldiers and he told them it did but he had not seen any government caskets since the Korean war; that the family then said that they wanted to purchase the funeral, that they would have more peace of mind; that he did not tell plaintiffs that the government did not bury its soldiers since the Korean war.

Mrs. Nell Brown, receptionist for defendant, stated that defendant was talking over the telephone to the air base about insurance and asked her to take down the information on the telephone extension, that no other woman was downstairs in defendant’s office but that there was an extension in defendant’s home where his wife could have listened in on the conversation.

Plaintiffs contend that defendant’s instruction D3 is erroneous because it permits recovery on the theory of quantum meruit although defendant pleaded an express contract. Plaintiffs are correct in their contention that the instruction permits recovery on quantum meruit; but defendant pleaded his counterclaim on that theory. He could properly allege the special contract and seek recovery for the rea-sonablé value of the goods and services rendered, where, as here, the contract had been fully performed by defendant and nothing remained to be done except for plaintiffs to pay the money. Stewart v. Droste, Mo.App., 294 S.W.2d 600, 603; Winifred Reighley v. Fabricius Estate, Mo. App., 332 S.W.2d 76, 85.

The case of Boyer v. Eberts, Mo.App., 241 S.W.2d 44, cited and relied on by plaintiffs, is not controlling here because the pleadings are not similar to those in 'that case.

Ordinarily, a party may not complain on the grounds that the judgment against him was not as large as it should have been. Humphries v. Shipp, 238 Mo. App. 985, 194 S.W.2d 693, 699.

The jury found for defendant on plaintiffs’ petition and for him on his counterclaim. It is not within our province to interfere with the verdict, on the record before us.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court.

All concur.


text:
    ILLINOIS STATE BANK OF QUINCY, Respondent, v. John PEDERSEN and Vella Pedersen, Appellants.
    No. 23013.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.

      L. E. Atherton and M. E. Montgomery, Milan, for appellants.
    William Y. Ftick, Unionville, R. M. Gif-ford, Green City, for respondent.
   CROSS, Judge.

In this action plaintiff, Illinois State Bank of Quincy, sues defendants, John Pedersen and Vella Pedersen, on their promissory note executed to Norris Implement Company of Unionville, Missouri. The note represents a purchase price balance allegedly due that company resulting from the sale of two trucks to defendants. Plaintiff bank sues as purchaser and trans-; feree of the note.

There have been three trials of the case, but no former appeals. The third and last, trial resulted in a jury verdict and judgment in favor of plaintiff, against both defendants, in the amount of $5,105.37,-from which defendants appeal. There have been two hearings on the appeal, the first of which was set aside by this court’s order. granting a rehearing. The submission before us is on the rehearing.

An unfortunate circumstance has plagued the parties, the trial court and this court. The court reporter died before her notes taken at the trial appealed from were transcribed. Numerous delays occurred while counsel endeavored to agree upon the transcript. It appears before us in primarily narrative and sketchy form, essentially reconstructed from the notes of counsel. The parties are not in agreement on several points. In those instances the trial judge has incorporated rulings based on his individual memory and trial notes.

Defendants do not deny either that they executed the note sued on or that they defaulted after making only two of twenty-four monthly payments provided for by the instrument. They insist that if the transaction is a conditional sale, plaintiff is not entitled to bring an action on the note for any claimed deficiency after their default and plaintiff’s repossession of the chattels. Alternatively, defendants say that if the transaction is not a conditional sale, but a sale involving a note and chattel mortgage, the note is nonnegotiable and without consideration, and that no action lies upon it. They admit in answer that they do not know which of the alternatives is true. We proceed to set out such additional facts as are pertinent to the issues presented.

Defendants’ purchase of the trucks was initiated on June 20, 1956, by John Peder-sen’s signature of a form entitled “Order for International Motor Truck” addressed to Norris Implement Company, ordering two new International Trucks at a total price of $14,549.07, credited .with a trade-in allowance of $3,749.07, leaving. an unpaid cash balance of $10,800. The order provides that such balance was “To he evidenced By installment conditional sale note or contract payable in 24 equal monthly installments — beginning August ■ 15, 1956”. The order also contains the following provision : “At the request of seller, purchaser agrees to execute a chattel mortgage covering the property ordered hereunder to secure payment of Said note or contract”.

On June 23, 1956, defendants executed a single page instrument, designated "Missouri — Installment Note and Chattel Mortgage”, containing pertinent provisions as follows:

“For value received, I promise to pay to Norris Imp. Co., or order, at Union-ville, Mo., the sum of $12,207.84 * * * in twenty-four installments of $508.66 ■ * * * commencing August 15, 1956. * * *
“If default be made in the payment of this note or any installment or part ' thereof, the payee, owner or holder thereof may declare this note and all installments thereof immediately due and payable. * * *
“In consideration of said sale and to ■ secure the payment of the above described indebtedness, I do hereby grant, bargain, sell, mortgage and convey to Norris Imp. Co., payee and mortgagee herein * * * the property above described * * *
“This mortgage is a first lien upon all the property above described without no exception (sic) * * *
“Provided, However, * * * if default be made in the payment of said indebtedness, or any installment or part thereof, * * * or if at any time the owner or holder of said mortgage shall deem himself or itself insecure, then he or it, is hereby authorized : to declare the whole debt due, and to enter upon the premises whereon said property, or any part thereof, may be, and take possession of and remove the same to any place it may deem best and sell the same at public sale * * * after giving not less than ten days’ notice * * *, or at private sale with or without the notice aforesaid * * * and out of the proceeds, is hereby authorized to retain such amount as shall be sufficient to satisfy the said indebtedness * * * returning * * * any surplus, and at any such sale the owner or holder of said mortgage may become the purchaser of said property * * * It is further agreed that I am to remain in peaceable possession of said property until default in the conditions of this mortgage. * * *
“(Signed) John Pedersen
“(Signed) Vella Pedersen.”

Norris promptly endorsed the “note and chattel mortgage” without recourse and transmitted it to plaintiff. The instrument was received by plaintiff on June 26, 1956. Plaintiff immediately paid the purchase price of the note and mortgage by its check issued and delivered to Norris in the sum of $10,800, dated June 26, 1956.

The account became delinquent soon after its inception. Defendants made only two payments, amounting to $1,017.32. Thereafter they were and remained in default. As authorized by the note-mortgage instrument, plaintiff attempted to locate and take possession of the trucks. The vehicles were finally found — one in Biddeford, Maine, the other in Norwalk, Ohio. Plaintiff had both trucks delivered to Quincy, Illinois, where they were parked on a lot for about two weeks, and then taken to Norris in Unionville.

Plaintiff introduced evidence relative to the condition of the trucks when first seen upon delivery to Quincy and to Unionville. One witness testified, “The rubber on the trucks was in bad condition and had virtually no tread, the body was scratched and dented. The entire condition of the trucks was rough”. Another witness stated: “The tractors were rough, body dented and practically no tires, the tires were practically worthless”.

It is uncontroverted that plaintiff has never sold these trucks, either at a public or private sale. They have remained either in plaintiff’s possession, or, at its direction, in the dealer’s possession.

Plaintiff tried the case on the theory pleaded in the petition — that defendants were entitled to a credit against the unpaid balance of the note amounting to the value of the trucks at the time of repossession. Two witnesses for plaintiff testified as to the value of the trucks. One witness stated they “were worth not more than $3,000.00 each at the time I saw them”. The other witness said, “I would place the value of each of these trucks at $3,000.00”.

Defendants, although present at the trial, did not testify and produced no witnesses. They offered and read to the jury part of a deposition given by the bank’s president admitting that the bank had received a copy of the order prior to purchasing the note. Defendants also introduced in evidence portions of a prior and abandoned petition. The court refused defendants’ offer to introduce in evidence a stipulation to the effect that the records of the Director of Revenue do not show that Norris reported the sale of the trucks.

The trial court instructed the jury to return a verdict on the note in favor of plaintiff in the amount of $11,190.52 (the principal balance) from which should be subtracted the amount they found from the evidence represented the fair and reasonable market value of the trucks when taken into plaintiff’s possession. The instruction further required the jury to include interest and a reasonable attorney’s fee in their verdict.

The jury returned its verdict in response to the instruction. They found that the reasonable value of the trucks was $7,000, and awarded plaintiff the remaining principal) balance of $4,190, together with interest in: the sum of $414.85, and an attorney’s fee o£ $500. The entire verdict is in the total sum; of $5,105.37.

Defendants’ first point is that “Defendants’ objection to the introduction of any evidence should have been sustained”. The objection concerned was made at the beginning of the trial for the stated reason “that no cause of action exists in favor of plaintiff and that defendants’ answer stands confessed”. This objection was overruled by the trial court. Defendants argue: the answer contains an allegation that the transaction is a conditional sale, and other allegations of certain factual matter tending (defendants claim) to establish that there was a conditional sale; plaintiff made no denial of those allegations in reply, therefore, by force of the pleadings, plaintiff admitted to a conditional sale; and, since plaintiffs also admitted taking possession of the truck, they had no cause of action. We find no merit in this contention. Having examined plaintiff’s original reply, from the four corners and without “dismemberment” (as condemned in Stock v. Schloman, Mo.App., 226 Mo.App. 234, 42 S.W.2d 61, 64), we are of the opinion that the pleading contains effective denials of the allegations in question. As stated in the Stock case, “Defendants cannot ‘split up his adversary’s pleadings and use dismembered parts thereof as an admission against him, and discard such parts as affect injuriously’ the defendants, (citing cases).” Plaintiff again denied the allegations in question at the conclusion of its evidence by amending its reply with leave of court. As amended, the reply denied all allegations of the answer not specifically admitted. It is our opinion that plaintiff should not be charged with the admissions defendants claim it has made. We further rule that the trial court committed no error by permitting the amendment and denying defendants a continuance applied for on the ground of surprise. We believe those rulings were properly within that court’s province in the exercise of its reasonable discretion. We share the trial court’s opinion that no undue hardship or prejudice fell upon defendant as a result of that court’s action.

• Defendants urge that they were entitled to a directed verdict, first because the transaction was a conditional sale and under the law plaintiff could not sue for an unpaid balance after taking the trucks into possession. From the nature of the documents before us and considering the facts in the case, we are convinced that the transaction between defendants and Norris was not a conditional sale — notwithstanding. the order form (1) states that title shall remain in the seller until the purchase price is paid and (2) provides that the time balance is “to be evidenced by installment conditional sale note or contract”. The or-áer form is, as explained by plaintiff’s vice-president, a catch-all form used by International Harvester Company both in states where chattel mortgages are the usual security instruments and in states where conditional sales contracts are used. It is significant that the form is flexible enough to provide alternatively for the execution of a chattel mortgage to secure the indebtedness. In any event the order is only a preliminary instrument in the nature of a proposal. We look to the note-mortgage document as the one of real significance in determining the actual nature of the transaction, because it expresses the final agreements and undertakings of the parties. We interpret that document under settled legal principles. The law does not favor conditional sales. In cases where it is doubtful whether a mortgage or conditional sale was intended, the doubt will be resolved in favor of the theory of a mortgage. Even in cases where the original contract clearly created a conditional sale, it has been generally held that the giving of a note and mortgage by the purchaser make the sale absolute. The giving of a chattel mortgage implies that title is in the mortgagor. See International Harvester Co. v. Threlkeld, 226 Mo.App. 600, 44 S.W.2d 182; State v. Griffin, Mo.Sup., 228 S.W. 800; Little v. Widener, 226 Mo.App. 525, 32 S. W.2d 116. With respect to the note-mortgage instrument, we conclude that in its first portion it is a promissory note, and that in its latter portion it is a chattel mortgage securing the note. It necessarily follows that we find no merit in the proposition urged.

Defendants next assign that the trial court should have directed a verdict in their favor “if this was a note and chattel mortgage” because “The instrument sued on is not a negotiable instrument”. It is conceded by defendants that the note standing alone would have been negotiable. It is urged that the chattel mortgage contains a recital that destroys the negotiability of the note by rendering the time of its payment uncertain and dependent on the option or whim of the owner. We re-quote the provision:

“Provided, However, * * * if at any time the owner or holder of said mortgage shall deem himself or itself insecure, then he or it, is hereby authorized to declare the whole debt due, and to enter upon the premises whereon said property, or any part thereof, may be, and take possession of and remove the same to any place it may deem best and sell the same at public sale * * * after giving not less than ten days’ notice * * *, or at private sale with or without the notice aforesaid * * * ”

Defendants rely on a general principle stated in Missouri cases to the effect that notes and chattel mortgages currently executed must be considered together. Those decisions are not persuasive on the question before us. In Owings v. Mackenzie, 133 Mo. 323, 33 S.W. 802, 805, the Supreme Court, speaking of a note and mortgage, said:

“We do not controvert the proposition that ‘when instruments are executed at the same time, for the same purpose, and in the course of the same transaction, they are to be considered as one instrument, and are to be read and construed together as such; but we think the doctrine cannot be said to apply to instruments of the kind and character now under consideration, so that the conditional provisions of one shall diminish control, and destroy the absolute provisions of the other. If, in the case at hand, that rule is to apply, then the positive, certain, and unmistakable time fixed for the maturity of the note in suit (and that, too, an essential prerequisite to give the instrument the designation and virtue of a note) is to be destroyed by this collateral instrument, going merely as an incident to the note’

The instant issue has been decisively ruled by Morgan v. Mulcahey, Mo.App., 298 S. W. 242, 244, cited and relied upon by defendants — also by plaintiff. There, as in this case, the defendants were contending that a note was not negotiable for the reason that a clause contained in the mortgage securing it permitted the holder to accelerate payment of the note at any time he deemed his security insufficient, thereby making the instrument due at an uncertain date.

The note and mortgage in the Morgan case were in the form of a single, unsepa-rated instrument, written upon the same piece of paper, signed only one time and at the bottom of the whole document. The instrument was almost identical to the note-mortgage in this case. The first portion of it contained the language of a note in conventional form, providing for payment of a named amount, in monthly installments, with specified interest. Immediately following the note appeared the recital of a mortgage in favor of payee, containing the following clause: “If default be made in the payment of the debt above mentioned, or any part thereof, or if at any time the said mortgagee, or holder hereof, deems debt insecure, * * * said mortgagee may without demand or performance take into possession and sell such chattels at public or private sale, * * * Of that instrument this court said:

“We think there is no question but that the first part of the instrument is a promissory note and the rest of it a chattel mortgage securing the same. However, defendants insist that the note is not negotiable in that the payment may be accelerated by the holder at any time he deems his security insufficient, making the instrument due at an uncertain date, citing sections 788-791 R.S.1919. If the acceleration clause appeared in the note itself, there is no question but that the , point would be well taken. Holliday State Bank v. Hoffman, 85 Kan. 71, 116 P. 239, 35 L.R.A. (N.S.) 390, Ann.Cas.1912D 1; Oklahoma State Bank v. First National Bank of Grandfield, 108 Okl. 272, 236 P. 581. But this clause does not appear in the note, but in the chattel ' mortgage, and the two portions of the instrument are not to be considered together, the rule being that although the two statements are written upon the same piece of paper, each is to be considered and interpreted as a complete entity. The part constituting a promissory note is governed by the law merchant and the other by the laws of property. Conditions in the mortgage for the benefit of the owner of the paper may be availed of only in his capacity as mortgagee and cannot be read into the promissory note and so render it uncertain or convert a negotiable into a nonnegotiable instrument. Kennedy v. Broderick [7 Cir.] (C.C. A.) 216 F. 137, 138, 139, L.R.A.1915B, 472, and cases cited; City National Bank v. [Goodloe-McClelland] Commission Co., 93 Mo.App. 123, 136. Under the provisions of the instrument now in question, even had the holder of the note and mortgage foreclosed the mortgage under the acceleration clause before maturity of the note, no suit could have been brought upon the note until its maturity.”

The foregoing remains the law of Missouri and is persuasive upon us in our treatment of the issue at hand. We are constrained to the view that the single page document in this case also contains two separate, unitary legal instruments — (1) a note, and (2) a mortgage. As to the effect of the acceleration clause, we are bound to consider each of the two portions of the combined instrument separately and as an individual complete entity. We cannot consider them together or with mutual effect. The acute significance of the Morgan case, as applied to the present case, is as follows: (1) the note and mortgage are considered separate instruments, although written on one sheet of paper with a common signature, (2) the note and mortgage are not to be considered together but each is to be interpreted as a complete entity, (3) the note portion is governed by the law merchant — the mortgage part by the laws of property, (4) privileges in the mortgage inure to the holder only as a mortgagee and cannot be read into the note so as to render it nonnegotiable, (5) the acceleration clause authorizes only the taking and selling of the property- — not the institution of a suit on the note before its date of maturity.

Defendants argue a distinguishing difference between the Morgan case and this case. , They say that in the former the acceleration clause merely authorized the holder to take possession of the chattels and sell, but that in the present case the holder is permitted, additionally, to declare the whole debt due and bring suit on the note prior to its stated due date. The difference claimed by defendants does not exist. The purport and effect of both acceleration clauses is essentially the same. Plaintiffs have no greater right in this case, in exercising the insecurity provision, than did the holder in the Morgan case. The right “to declare the whole debt due” (in this case) is not the right' to bring a suit on the note prior to the due date stated in the note. The sense of those words is only to the effect that “the whole debt is due” for the purpose of taking the mortgaged property and applying the proceeds of its sale to the debt. In Owings v. Mackenzie, 133 Mo. 323, 33 S.W. 802, 80S, the Supreme Court has defined the legal import of the words “the whole (debt) shall become due and payable”, as contained in a deed of trust securing a promissory note. The court said:

“We are aware that our court has frequently made use of the expression found in the deed of trust before them for consideration, and has declared ‘that the notes secured by them have matured by reason of the happening of the condition specified therein,’ before the notes upon their face were in fact matured; but by an examination of all cases where these expressions have been found, except in the ones just cited, the term is applied only in a limited sense, and not in the sense that the note or notes have matured for all or general purposes. ‘Maturity,’ in the sense in which these terms are used, is that they are ripe for the purpose of receiving the application of the proceeds from the sale of the collateral security; by reason of the provision of - the deed of trust itself, as well as from the necessity of the situation, that requires of a trustee the disposition of the trust in his hand in such a manner that its fruit is not permitted to waste or perish in his possession”.

We rule that the insecurity clause in this case has no accelerating effect upon the due date of the note, does not render the time of payment uncertain, and does not make the note nonnegotiable. We need not and do not here consider what effect the acceleration clause would have had upon the note’s negotiability if it had been contained within the body of that instrument.

• Further contending that a verdict should have been directed in their favor “if this was a note and mortgage”, defendants claim (1) that the note was given without consideration for the reason that no bills of sale were delivered to defendants, as required by Section 301.280 V.A.M.S., and (2) plaintiff purchased the note in bad faith, with knowledge that it was without consideration. The two propositions will be considered in inverse order. In determining whether plaintiff had knowledge of the claimed infirmity, it will be assumed that there was a failure on the part of Norris to deliver the bills of sale. Under that assumption, we examine the record for evidence tending to prove that plaintiff knew, when it purchased the note, that the dealer had failed in its statutory duty. We ■find no fact or circumstance of evidentiary value other than the two documents introduced in evidence — the sales order and the note-mortgage — and the testimony of the plaintiff’s president admitting that the bank had received the order prior to purchasing the note. There is nothing contained in either the order or the note-mortgage that can be considered as any notice to plaintiff that no bills of sale would be •or had been issued to plaintiff. The order in the hands of plaintiff before its purchase of the note-mortgage contained two alternative methods of effecting the sale. It permitted, at the dealer’s option, either a conditional sale or an absolute sale with mortgage security. Plaintiff could assume from the order that if the transaction developed into a conditional sale, title to the trucks would remain in Norris, as a legal ■consequence. Otherwise, plaintiff could reasonably infer that if the transaction turned out to be a regular note-mortgage, ■credit-installment sale, with a delivery of the trucks into defendants’ possession, Norris would deliver the bills of sale in accordance with the statute. Likewise, the note-mortgage instrument itself gave plaintiff cause to believe the dealer had sold and delivered the trucks regularly, and with lawful issuance of title documents, because, as we have said, the giving of a mortgage implies that ■title is in the mortgagor. This implication is strengthened by the clause in the mortgage reading as follows: “This mortgage is a first lien on all the property above described”. The note-mortgage was in usual, ordinary, regular form. It contained no recital that could be considered as any notice that Norris had failed to give defendants bills of sale. We believe there is no substantial evidence that plaintiff was other than an innocent purchaser of the note, in due course, in good faith and without notice of the alleged infirmity. Therefore, even if Norris failed to comply with the law, the note was valid in the hands of plaintiff, although it would be without consideration and unenforcible in the hands of Norris. Morgan v. Mulcahey, supra. It has become unnecessary that we consider the state of the evidence as to whether the title papers were delivered. It is immaterial whether Norris was in compliance with the statute since we regard plaintiff as an innocent holder of a negotiable instrument. We rule that no prejudicial error was committed by the trial court in rejecting defendants’ offer to put in evidence a stipulation reciting that the records of the Director of Revenue did not show that the sale of the trucks had been reported, as required by Section 301.280 V.A. M.S. We regard the proffered evidence as immaterial. It is our conclusion that the trial court committed no error by denying defendants’ motions for a directed verdict.

Defendants insist that if they were not entitled to a directed verdict the trial court should have stibmitted to the jury their defenses (1) that the entire transaction is a conditional sale, (2) that the note is nonnegotiable, and (3) that plaintiff is not an innocent holder of the note. We have discussed each of these matters at sufficient length. It is our considered opinion that none of the asserted defenses is sufficiently supported by evidence to warrant its submission to the jury.

Defendants charge the court with error in permitting plaintiff’s witnesses to testify to the condition and value of the trucks in Quincy and Unionville, without a showing that they were in the same condition as when located in Maine and Ohio. The contention is not supported by citation or authority. We believe the testimony was material and that it was properly admitted. Its weight and effect were for the jury to consider and evaluate. “Evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted * * 32 C.J.S. Evidence § 1031, p. 1070. Plaintiff produced evidence of the trucks’ condition and value at the time and place those vehicles came into its physical possession. The jury could believe that testimony to be the best evidence plaintiff was able to produce under the circumstances existing. It was sufficient to support the issue of the trucks’ value — particularly in view of defendants’ failure to testify or produce testimony on the issue.

One final point remains before us— raised by defendants for the first time in this court, after the first appeal submission and on this rehearing. Defendants contend that plaintiff waived its right to collect the deficiency of the debt by failing to sell the trucks under the terms of the mortgage. This defense was not presented in the trial court. Defendants there joined with plaintiff in its trial theory that defendants were to be credited with the reasonable value of the trucks' — by admitting in their answer “that the said trucks were * * * not only worth $6,000.00” (as alleged in plaintiff’s petition) and by further alleging “that said trucks were at that time of the reasonable market value of $13,000.00.” Again, defendants joined with plaintiff in submitting the case on plaintiff’s trial theory when they requested and the court gave Instruction No. E, which reads:

“You are instructed that in regard to the evidence before you, of experts and others, concerning the value of the motor vehicles described in evidence after plaintiff took possession of the same. You are not bound by the testimony of such witnesses, but may apply your own judgment and knowledge as to such value, in arriving at your verdict in connection with the testimony offered in the case at trial.”

There is no mention of this recently raised point in defendants’ motion for new trial. It is not contained in defendants’ original brief or in their reply brief. Courts do not look with favor upon a change of trial theory after the case is appealed. Adhering to time-honored rules of orderly procedure, buttressed by almost innumerable decisions, we decline to consider the question raised at this stage of a regrettably protracted cause.

Plaintiff suggests that defendants are in violation of the Rules of Civil Procedure in that certain points contained in their brief are abstract statements of law and fact and fail to show the precise error complained of, and because other points and supporting argument contain no citation of authority. Although plaintiff’s insistence is correct in fact, in the exercise of our discretion we have chosen to determine the matters complained of on their merits.

The judgment is affirmed.

All concur.

      . See: General Motors Acceptance Corp. v. Holland, Mo.App., 30 S.W.2d 1087; Miller v. Biggs, et al., Mo.App., 183 S.W. 713; Southern Missouri Trust Co. v. Crow, Mo.App., 272 S.W. 1040; Simpson v. Bantley Realty Co., 142 Mo.App. 490, 126 S.W. 999; Jacques v. Goggin, et al., 362 Mo. 1005, 245 S.W.21 904.