Jack Brandt, Ltd. v. Morris

400 S.W.2d 417 | Mo. | 1966

PRITCHARD, Commissioner.

The decisive question is whether the appeal of this case is premature because the judgment of the trial court did not dispose of appellants’ counter-claim.

Respondent’s petition was upon an account for household furniture and furnishings sold to appellants, and for interior decorating and construction supervision services, all of which was furnished, done and performed at appellants’ request between June 6, 1958 and January 8, 1960. The prayer of the petition was for $5,253.38, costs and interest from April 1, 1959. Appellants denied the allegations of account due, and filed a counter-claim for $12,500 alleging that in the latter part of 1958, and during the years 1959 and 1960, respondent sold appellants certain items of household furniture and furnishings for use in their residence, and that respondent also agreed to perform certain other decorating in the renovation of appellants’ home and in installation and construction of a swimming pool thereat. It was further alleged that the furniture was of an inferior and poor quality and was required to be either repaired or replaced by appellants; that the interior decorating was improperly and negligently done and appellants expended considerable sums to have same redone; and that the tile installed in the swimming pool buckled and cracked, and appellants were required to have the tile and entire filter system thereof replaced, and there was also water seepage from the swimming pool resulting in damage to appellants’ patio which had to be rebuilt.

The case was continued at various times, and when it was finally set for trial and tried, neither appellants’ attorney, who left the courtroom at the time the case was called and refused to participate without his clients, nor appellants were present. Only respondent’s evidence in support of their account sued upon was received. The judgment entered of record recites: “Now at this day comes the plaintiff by officers and counsel, and the defendant fails (sic) to appear, and a jury being waived herein, and this cause now being submitted to the Court upon the pleadings, evidence and proofs adduced and the Court having seen and heard the same and being duly and fully advised of and concerning the premises, finds the issues herein joined in favor of the plaintiff and against the defendants, and that said defendants are justly indebted to said plaintiff for the sum of $5,253.38, plus interest of $1,470.94 aggregating a total judgment for said plaintiff in the sum of $6,724.32.” No mention is made of the counter-claim nor is there any order for separate trial thereon under Civil Rule 66.-02, V.A.M.R.

Here, a finding in favor of respondent (as was made) necessarily includes a finding that it sold the goods and performed the construction supervision services. It does not affirmatively appear that the counter-claim arose out of the same transaction, and appellants denied the essential allegations of the petition. However, proof of the allegation of one party and a finding thereon would not make a simultaneous finding for the other party inconsistent therewith where different claims are made. This case falls within the rule that a final judgment must dispose of all issues. Liepman v. Rothschild, 216 Mo.App. 251, 262 S.W. 685, 686 [3]; McNabb v. Payne, Mo.App., 280 S.W.2d 864, 866 [2-8]; Du-deck v. Ellis, Mo., 376 S.W.2d 197, 204 [3]. It does not fall within that class of cases where a judgment for one party necessarily disposes of the claim of the other (e. g., cases where each party claims the other was negligent, cf. Staples v. Dent, Mo.App., 220 S.W.2d 791, 792 [1, 2]), and see Commercial Nat. Bank of Kansas City, Kan. v. White, Mo., 254 S.W.2d 605, 608, where a finding of claimed amount due on a note disposed of defendant’s counter-claim wherein he asked restitution of amounts paid on the note by him. In this case proof by respondent of amounts due it from appellants does not by implication dispose of appellants’ claims of defective furniture sold them, improper interior decoration, or negligent tile installation and its resultant water seepage damage to their patio.

The appeal being premature, it is dismissed.

BARRETT and STOCKARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.