*1 979 mаke We conclude in the trial court the instant that for ease of make,- the effect order which it has annoudced it intends to —the husband’s that, which is the ground pendency on the mere the of of wife’s the the court, later divorce action another division of stayed (relator’s) be prior separate "maintenance shall action for by disposition the during pendency and to abide the relator deprive separate case, the husband’s later be to —would her present right her with proceed prosecution absolute court’s of the prior independent action; an excess would be court’s abuse of the legitimate authority, law, unwarranted in and an discretion, any, premises. if relator is remedy sought proper, and
We believe the here obtaining. adequate remedy under the conditions afforded no other 152 1131, Owen, v. 347 Mo. In State ex rel. Schoenfelder 1139, (2d) 64, said: S. W. loc. cit. Court may the enforcement prohibition be invoked to restrain “But authority judge legitimate beyond or in excess of the of orders general jurisdiction of presides has though the court over which he question belongs. ‘Where a court the class of cases to which the one by law, granted judicial power not judge to exercise or assumes right prohibition) a' whether (so far concerns the it matters not is not am in a case which the court power occurs exhibition merely an excessive and unauthorized all, or is entertain thorized to cognizable properly force in a cause judicial otherwise application of question.’ Louis, Kennett Southern judge St. & by court or 230, 256, 135 Mo. 36 S. W. 358.” So., Wear, et al. Railroad necessary herein to determine other -that' is not It follows present preliminary action. Our by parties in the made points Cave, J., concurs; It is so ordered. permanent. made be writ should Bland, J.,P. dissents. remedy any if ground that Relator has my on the dissent place
I it is mandamms. Respondent. L. v. J. Inc., Appellant, Wallace, Company,
& Riss (2d)W. 881. 195 S. May Appeals. City Court
Kansas *2 Trusty & Pugh, Campbell, M. D. Guy Jr. and appellant. Green for *3 Ray- Copley Walter A. Cope, Cope Hadsell, & L. V. A. Hoyier *4 respondent. mond for *5 plaintiff, filed a corporation, Company, J. Riss & a
SPERRY, claimed petition counts, replevin for of motor tractors two the first defendant, Wallace; and in the second to been leased to L: have J. and for an judgment sought damages for to' vehicles count was (a) petition defendant filed answer follows: account. To this for general coupled a with a counterclaim one he filed denial count suit, replevin purchase price equipment for described $8750, (b) damages; to count two damages, $15,000 punitive and for as actual $16,723.50, for general counterclaim filed denial and a defendant hauling. him, a for unpaid, on contract claimed be due plaintiff’s counterclaim to in circuit court defendant’s On trial court directed a verdict for motion. The one was stricken on count for one, two, count on counterclaim to plaintiff on count its two. Defendant damages for on count nominal least judgment affirmed ex- was Court where appealed two, as held that error was plaintiff’s count to' which was as to cept damages. directing verdict nominal The for committed Company Wallace, the cause remanded. reversed [Riss & (2d), 171 S.W. 641.] retrial, plaintiff its count stood on was reached the cause When denial, coupled with an general then filed a to which two, filed motions to' in two counts. Plaintiff counterсlaim amended *6 dismiss, and to strike of both counts defendant’s amended counter- claim, which motions were overruled. plaintiff the close of evidence At two, dismissed its only count the remaining count of its and petition, a verdict, moved for directed which motion overruled. Yerdict was and were for defendant on both counts of his amended counterclaim; but after motion for new trial was sustained as to count one, by was dismissed. appeal, then, judg- This a plaintiff is from ment in favor of counterclaim, defendant on count in two of his the amount of $3000 actual punitive damages. $4000 and controversy grows whereby
The out of a plaintiff, transaction who in transportation is the truck business, (designed sold seven tractors pull and trailers) used to loaded mortgage payments, to defendant on eventually made, which were and leasеd same back under a contract whereby they by to goods were be used in transporting defendant plaintiff as directed. Plaintiff never delivered defendant to certificates title, of to said tractors. The contract twice renewed and was notice, provided terminated on contract, 21 months. after mortgaged Defendant thereafter the a tractors to which fore- bank, mortgage closеd possession the and took of the trucks. part counterclaim, only
The material of pleading defendant’s the ease, in now this is as follows:
. . that plaintiff . now and all herein, times mentioned was, engaged hauling in of general hire; the business merchandise for that plaintiff maintained office place its chief and No. 124 of business at Street, City, West Fourth in County, Missouri; Kansas Jackson that 30, April on defendant agreement еntered a contract or into writing plaintiff purchase with the to from the certain motor equipment, equipment trucks and including I described Count plaintiff’s of petition, pay charges, second amended and all to certain $10,233.50; copy in the total sum of a true of said contract and agreement has been heretofore attached to defendant’s answer and marked A,’ by counterclaim and ‘Exhibit reference, and is made a part agreement of that under answer; this said contract or said motor equipment paid and trucks were be for as follows: By $3,750.00 “1. a down-payment of as of the date the execution agreement. of said By payment
“2. of the further $250.00 sum of as of June 1937; and By payment equal $6,233.50 pay- the balance of ten “3.. each,
ments of which amount was included in a $623.35 note principal $7991.80, April 30, sum dated secured chattel including mortgage property, same date certain said motor trucks on equipment described as aforesaid. paid further states that he the said total sum “Defendant including $10,233.50, purchase price of said trucks and motor sum of equipment $8750.00; described aforesaid did everything each and Mm required Mm to be done entitle delivery of the Missouri certificates of to said motor trucks title *7 equipment any any charges to defendant liens, claims, without or of whatsoever; do, kind although requested by plain- that defendant so to tiff refused, delivery failed or at the time of the of said motor trucks and equipment, thereto, to deliver title to the defendant certificates of required many by promised as to on date, do at later that law, but plaintiff perform occasions thereafter its defendant demаnded that legal duty in respect such and to certificates of deliver the defendant com- equipment, plaintiff, title to said motor trucks and but instead'of again plying demands, promised plaintiff with such defendant that told date; plaintiff would deliver the certificates of title at a later that assignments defendant of title to defendant that of said certificates fully signed executed; had been defendant that on оccasions when and plaintiff title, plaintiff became insistent that deliver such certificates of hauling plaintiff, to which was the threatened cancel his contract with away repossess livelihood, means of his and threatened to and take violating equipment Mm; plaintiff so sold that well knew that was failing assign deliver the laws state of Missouri in so to and of the of purchase of to defendant as of date of the said certificates title in- but, nevertheless, wrongfully, equipment, and said motor trucks unlawfully assign to willfully, and failed tentionally, fraudulently, title to said certificates of and failed and refused to deliver defendant by as afore- any time; plaintiff’s that conduct reason wrongful acquire legal to motor said, defendant, not and did not title said could Missouri; defendant equipment'under laws and trucks having been assignments of the upon certificates believed and relied plain- by did know that plaintiff and defendant not executed as stated assignments certificates to to said faith, in bad had failed tiff, execute title to said to said certificates of title and did not intend deliver fully and defendant, although had equipment defendant motor to this action the above finally paid same, plaintiff until instituted for the by there- February 28, 1939; reason and replevin court on in this for re- any action plaintiff’s to defense of defendant was without amended plaintiff’s third under Count-I plevin, as forth set action replevin plaintiff’s said result of herein; that as a petition a final I, obtained plaintiff in said Count said possession of May 4, 1943 for on or about of Missouri Court of said motor possession and obtained equipment, and motor trucks pos- from wholly defendant excluded and equipmеnt, trucks and will- by the aforesaid thereof; reason ownership session and fraudulent, falsely and plaintiff conduct of unlawful ful, and of title had certificates of said fraudulently stating assignments n certificates to deliver refusing failing and in been executed defendant, to equipment trucks motor to said of title therefor, the defend- finally paid fully and although plaintiff was. ant has been deprived money paid by him purchase on the price of said trucks and equipment $8750.00; motor the sum of that defendant is entitled per to interest at cent the rate six per annum from payment by the date of final made defendant on said mortgage, note and January 13, to-wit: chattel 1938; that plaintiff’s because conduct, falsely stating assignments in so of said certificates of title had been executed to defendant and fail- ing and refusing to' deliver certifiсates of title said motor trucks and equipment to defendant, required by the laws of the state of Mis- willful, souri, malicious, fraudulent, unlawful, defendant entitled to punitive damages recover in the further $15,000.00. sum of prays judgment against plaintiff on “WHEREFORE, this, Count II of his amended counterclaim plaintiff’s II of Count said third petition, amended payments him the sum of the made on said contract $8750.00,together amount of with interest therer *8 on at per the rate of six per January 13, 1938, cent annum from and for the further $15,000.00, punitive exemplary reasonable sum of as or damages, together with expended.” his costs herein and incurred
Plaintiff substantially contends that the in counterclaim this case is same, by the as to material averments, Supreme as that ruled the Court pleading former trial. We do not have us the former before but, in opinion Company Wallace, suprа, the of its in course Riss & v.
l.e. the court said:
“The in up contract counterclaim is set defendant’s to count one statute, void under support the and will not an action either for its enforcement or for its breach. We concede understand this, strenuously argues but he his counterclaim seeks neither that damages breach; enforcement of the contract nor for its that it seeks damages alleged obtaining plaintiff the frаud deceit of in and money by argu- promise a false to deliver the certificates of title. That reasons; first, already counterclaim, ment is unsound for the as two out, wit, right a defense to the pointed action, is not cause of up one; second, the counterclaim does not possession, set count padd which on the proper contain to recover the sums were averments by countеrclaim, price Defendant, purchase the motor vehicles. Ms tender the bach to that he has tendered or will vehicles doesnot state retain them and also the plaintiff and, course, he cannot recover unlawfully By general denial he denies that price. his he purchase by counterclaim he shows that has vehicles, but the detains the possession had institution legal- (defendant) he the the titlе while up contract in the counter- he must mean the set of the suit. Thus being unlawful. prevents it from justifies possession his and claim a void contract. We hold that attempt to enforce That to be an seems and, properly stricken as defendant count one was the counterclaim to by offering legal certificate's, title the plaintiff proved admitted plaintiff on that jury find for properly the the court instruсted or question of whether holding pass upon count. In so we do not the proper aver- could, under not the matter contained the counterclaim a be used as ments, separate a cause of action or form the basis of indebtedness.” against seeking to recover petition counterclaim ours). (Emphasis proper aver did not contain
The court held that the counterclаim money it did not state paid purchase price, ments as because to recover back to would tender the vehicles that defendant had tendered or language of the counterclaim plaintiff. From an examination the case, and court said of the counterclaim filed in this from what the pleading before us lacks the prior case, apparent the it is that the necessary to stаte Supreme noted -Court as essential averments money recovery had and purchase price, for a cause of action for holding money is concerned that becomes received. So far as this court both, are ease, pleadings, evidence, or or unless law materially they prior appeal. [Shep different from what were (2d) America, S. W. pard v. Travelers Protective Association Railway Company, v. Francisco 528, l. 532; c. Davidson St. Louis-San 256 W. l. 301 Mo. S. c. 170.] Court said effect, that what Defendant contends, money paid being recover without defendant not entitled to relative to vehicles, is obiter tendering back the renouncing transaction only court issue before since, claimed, it is the real dictum re presented a defense to the the counterclaim was whether or not more distinct a court bases its decision on two or When plevin action. obiter and neither is authorative as the other grounds, each (2d) Fidelity (Tex.) 65 Company, S. W. Gas dictum. [Casparis *9 dictum, is, may be; if it obiter never as it Be that l.c. 406.] Ass’n., 66 v. Louis Fair law. St. theless, the well settled [Ullman (2d) 893, l.c. Boyer Garner, S. W. 952; W. l.c. v. 15 S. 894.] evidence, on pleadings and stand, cannot under the The for money used the vehicles theory had and received. Defendаnt the -$112,000 collected over years made, after the contract was almost two the contract, renewed service under the plaintiff’s in for their use demands says, repeated but futile having made, as contract after he the con delivery and, of title after termination of certificates for stranger bank, a to mortgaged property to a hauling, he the tract for mortgage was controvеrsy grew. That this of which the contract out defend to the that pleading or evidence effect There is no foreclosed. property the back rescind, or tendered rescinded, offered to' ant ever Garner, v. plaintiff. to [Boyer supra.] “ seeking says: if defendant Of course were In brief defendant his return, return, to the money or offer paid’ he should ‘recover his to . . But excuse therefor. some othеr valid unless he showed vehicles money paid’ return ‘his but the court to did not ask here only give to him the value of these he fully paid vehicles which had for ’’ they at the time were taken from him. He for the full amount, sued $8750, alleg'es paid which he only he for the vehicles; but he claims to recovery seek for such amount paid property as was that the was worth replevined. professes when distinguish He to a suit for between the purchase price whole money amount of the or paid, part and one for a thereof. To opinion the author of this appear it would to be a distinc- tion without a difference. bring pro- He does not his within the case Boyer visions of the declared in Garner, supra, upon doctrine v. which authority. he relies illegal, was an This void and fraudulent trans- parties action. Both participated equally in it. can enforce Neither the or However, contract sue for its breach. defendant could have availed poenitentiae himself the loctts and could have recovered his money paid, provided he repented had within a reasonable time while the contract executory, was had he cleansed himself providing restoring party the other Garner, to his former stаtus. v. [Boyer This, the pleaded proved. defendant neither nor supra.]
Defendant that in prior contends the decision the case is the not law of pleadings materially the case because the in case are differ- that from ent those in the case at He here that bar. claims 'is entitled he to recover for fraud and deceit. He made that contention in the Supreme Court and against Howеver, the court him. he con- ruled pleadings materially tends that the in evidence this ease differ- are from ent the Court. allegations present
There are some pleadings the which not were alleged in the former. It is promised that defendant to deliver equipment delivered, so; certificates when was failed to but do defendant, thereafter, and that repeated delivery made demands for althоugh and, plaintiff promised them, certificates to deliver he support allegations failed so do. to There evidence of such plaintiff, promises made, to the further at the effect time such were deliver had no intention thereafter Actions the certificates. based representations predicated misrepresenta- be on fraudulent must on existing promisor, tions as to material facts. It is nоt sufficient that the making it, had fulfilling when no intention of if promise, performed to an act be promise was as the future. [Reed (2d)W. Cooke, (Mo. banc, En 55 S. l.c. 278.] part Allegations of threats on the hauling cancel the demanding persisted delivery if defendant certificates, contract allegations legal because, contract, not duress under do constitute right days to cancel party had absolute on *10 either notice. The procured duress itself was not or fraud and under contract shown, compelled, by not legal defendant was duress, facts here period in for a of 21 contract effect To months. constitute continue a wrongful act threatened must be tortious or legal duress the act. page pressure S. enough. Mere business not J. Section is C. [17 536; McCoy Co., l.c. 771, 216 S. W. v. McMahon Construction 772.] plain- effect that Allegations, support thereof, in evidence -when, in tiff told been executed the certificates had fact, they legal had The transaction of no been, not are effect. delivered when assigned and certificates title not void because were (c), Eevised the vehicles Subsection were delivered. [Section at that were, The fact that the certificates Statute Missouri 1939.] assigned or аcknowl- time, assigned not acknowledged, or were they been have edged, is not have been effective must material. To Company, 6 S. W. delivered. v. Westchester Fire Insurance [Mathes (2d) 66, l.c. 68.] analysis allegations contained the counter- Comparison and of the conclude that case, case, this leads us to prior claim ruled allegation no material in the case contains the counterclaim instant’ Supreme has indicated not in the former. The Court contained failed state a there considered prior case the counterclaim money had We and received. cause action in fraud and deceit or rely wholly on what was said doing, in so we do not but, rule likewise rely controlling Company Wallace, supra, but also on other in Eiss & decisions of Court. overruling trial erred stated the court
For the reasons above verdict, at the close evidence. for a filed plaintiff’s motion directed C., concurs. reversed. judgment Boyer, The should be C., adopted is foregoing opinion PEE CUEIAM:—The of’Sperry, J., Bland, P. reversed. opinion court. The Dew, concur; Cave, J., J., dissents. Life Insurance Baker, Appellant, v. National Home Com
Grace Respondent. (2d) 195 S. W. 912. pany, corporation, City Appeals, May 27, Kansas Court