Wonderly v. Haynes

139 S.W. 813, 159 Mo. App. 122, 1911 Mo. App. LEXIS 529

• Court: Missouri Court of Appeals
• Decided: July 15, 1911
• Status: Published

Opinion

REYNOLDS, P. J.

The plaintiff instituted this action against defendant on May 19, 1909, on six promissory notes due in 1893 and 1894. The petition is in two counts, the first ou a note for $2500, the second on five notes for $500 each. A judgment was demanded on each count for $2500.

In answer to the first count, after a general demal and a plea of the ten-year Statute of Limitations and of payment, there is a plea of a discharge in bankruptcy. The answer to the second count, after a general demal, is the plea of the ten-year statute and of the discharge of defendant in bankruptcy.

The reply, after a general demal of the new matter, avoids the statute by a plea that defendant has not been a resident of tMs state for the past ten years or thereabouts and for that period was out of the jurisdiction of the courts of tMs state. To the plea of the discharge in bankruptcy, there is a demal that the discharge covers these notes.

On a trial of- the cause before the court and a jury, there was evidence tending to prove that the five notes mentioned in the second count of the petition were given on condition that if the $2500 was not paid that these five notes were to be held as collateral for the payment of the $2500 note, defendant on Ms part contending, however, that the five notes were taken in payment and discharge of the $2500 note.

At the close of the testimony in the case, defendant’s counsel moved that plaintiff be required to elect on which, count of the petition plaintiff would stand. The court sustained the motion, to which action plaintiff, by counsel, then and there duly excepted and thereupon stated that he would take a voluntary non-suit as to the second count of the petition and stand on the first count. The jury returned a verdict on the first count in favor of defendant, whereupon plaintiff filed a motion for new trial, in which the fourth ground assigned is, “the court erred in sustaining the defendant’s motion to compel the plaintiff to elect which of the two counts of his petition he would stand on; under the conflict of evidence it was a matter for the jury to determine which of the two sets • of notes were the real, obligation.” The court sustained the motion for a new trial and awarded one on this fourth ground, to which action defendant,, by counsel, duly excepted and has perfected his appeal to this court.

It is claimed by counsel for appellant that the non-suit was voluntary and that therefore plaintiff has no cause to complain and that the action of the court in setting aside the verdict and granting a new trial on the fourth ground assigned was error. We cannot agree to this. While it is stated that the non-suit was voluntary as to the second count, it is evident that that is not a fact; it was a non-suit forced on plaintiff by the adverse ruling of the court, compelling him to elect, to which ruling exception was duly saved. So the trial court evidently held. The two causes of action stated in the petition are not so inconsistent that the proof of one disproved the other. While it may be true that plaintiff is not entitled to recover on all six of the notes and can recover only $2500, it was for the jury to say, under the evidence in the case, which of these counts had been sustained. There was evidence in support pf each, and on which the jury had a right to determine between them. .

We find no error in the action of the trial court in sustaining the motion for new trial on the ground assigned. The plaintiff should have leave, on motion, to set aside the non-suit as to the second count, as having been taken involuntarily. The judgment of the circuit court granting a new trial is affirmed and the cause is remanded for further proceedings in accordance with this opinion.

Nortoni and Caulfield, JJ., concur.