Opinion
No. 28228.
July 3, 1951.
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS, ROBERT L. ARONSON, J.
G. L. Seegers, St. Louis, for appellant.
Mattingly, Boas Richards and Lloyd E. Boas, all of St. Louis, for respondent.
This is an action in two counts for money had and received, brought by Thomas A. Twamley, as plaintiff, against E. B. Jones Used Car Arena, Inc., defendant. To the petition, defendant filed a motion to dismiss on the ground that said petition failed to state sufficient facts to constitute a cause of action. This motion was by the court sustained, with leave to plaintiff to file an amended petition. Thereafter, plaintiff refused to plead further, whereupon said cause was by the court dismissed. Plaintiff thereafter appealed.
The only issue on this appeal is whether the petition states a cause of action. Said petition is as follows (caption and signatures omitted):
"Count I
"1. Comes now plaintiff and states that at all times hereinafter mentioned defendant was a corporation duly existing under and by virtue of law; that said corporation was incorporated for the purpose of engaging in the buying and selling of used automobiles and was so engaged at the times hereinafter mentioned, and held itself out to the public as being so engaged; that the defendant had no legal right nor power to lend money nor to charge rates of interest for the lending of money; that its corporate powers did not include the power to lend money or to charge interest therefor; that defendant was not incorporated for the purpose of engaging in the business of furnishing or selling insurance, nor did its corporate powers include the power or right to sell insurance nor to deal in insurance as a broker, agent or otherwise; that the defendant does not sell insurance, and is not engaged in the insurance business.
"2. Plaintiff states that on the 12th day of November, 1949, he purchased from the defendant a 1946 Custom Model Dodge Sedan bearing Motor No. D-24-1997; that the defendant charged to him therefor the sum of $1195.00 and that the plaintiff paid to defendant, in part payment thereof, cash in the amount of $210.00 and traded in an automobile for which defendant credited the plaintiff the sum of $85.00; that there remained due the defendant as the balance of the purchase price of the Dodge Sedan as above-mentioned the sum of $900.00.
"3. Plaintiff states that in payment of said balance of $900.00, the defendant required of the plaintiff that plaintiff execute to defendant his promissory note secured by a chattel mortgage on said Dodge automobile, and required said note to be in the sum of $1,336.80; that the amount of said note was in excess of the amount owed the defendant by the plaintiff in the sum of $436.80.
"4. Plaintiff states that the defendant transferred said note for value to the G. F. C. Corporation and received value therefor.
"5. Plaintiff states that the said note executed by plaintiff to defendant as aforesaid at the instance and request of the defendant, constituted an overcharge by the defendant, and an overpayment by the plaintiff, of the amount due the defendant in the sum of $436.80; that said overcharge was illegal and unearned; that said defendant holds said sum of $436.80 to the use of the plaintiff.
"Wherefore, plaintiff prays judgment against defendant for $436.80 and costs.
"Count II
"1. By reference, plaintiff incorporates herein, under Count II of his petition, all of the allegations contained in Paragraphs 1, 2, 3, 4 and 5 of Count I of his petition and pleads the facts therein alleged as though fully set out herein.
"2. Plaintiff states that the defendant claimed the difference of $436.80 above referred to, as constituting interest or time payment charges, but that said interest or time payment charges, if such, were usurious and in violation of the limit of interest as set by law and were excessive in the sum of $296.70.
"Wherefore, plaintiff prays judgment in the sum of $296.70 against the defendant, and costs."
The court properly sustained the motion to dismiss Count I of the petition. According to the allegations of said Count I, plaintiff gave his note to the defendant in the sum of $1,336.80, which was alleged to be in excess of the amount owed defendant by plaintiff in the sum of $436.80. It appears that the note was never paid, and was assigned to a third party. Therefore, defendant does not have in his hands money belonging to plaintiff which defendant ought not to retain. Green v. Whaley, 258 Mo. 530, 167 S.W. 575; Martin v. Chambers, 84 Ill. 579; Deah v. Mason, 4 Conn. 428.
Appellant relies upon Koller v. Shannon County Bank, Mo.App., 74 S.W.2d 271. Said case is not controlling for the reason that it seems to be in conflict with the Supreme Court's decision in Green v. Whaley, supra.
In Martin v. Chambers, supra, where plaintiff also sought to recover for an overcharge in the sale of land where two notes were given — one of which was paid and the other negotiated — the court said, 84 Ill. 579, loc. cit. 582: "The law undoubtedly is, the action of assumpsit for money had and received is an equitable action, and lies where defendant has in his hands money belonging to plaintiff which, in conscience, he ought not to retain; still, that view of the law does not aid plaintiff's case. According to his own testimony, one note given for the consideration to be paid for this land is outstanding, and has never been paid. It is true, it has been assigned, yet it does not appear but defendant may have to take it up from his assignee. It is not shown defendant has any money in his hands that equitably belongs to plaintiff."
The court did not err in sustaining the motion to dismiss the second count of the petition. The gist of the cause of action is stated in paragraph two of said count, as follows: "Plaintiff states that the defendant claimed the difference of $436.80 above referred to, as constituting interest or time payment charges, but that said interest or time payment charges, if such, were usurious and in violation of the limit of interest as set by law and were excessive in the sum of $296.70."
The petition does not allege sufficient facts to show that there was usury in this transaction. The rate of interest is not stated, nor is there alleged the length of time the loan was to run. If either of these facts had been pleaded it might appear that there was usury in the deal. Absent such an allegation, Count II pleads a mere conclusion. St. Paul Fire Marine Ins. Co. v. American Trust Co., Mo. Sup., 222 S.W. 137. Under the new Code, R.S.Mo. 1949, § 509.050, it is not sufficient to plead mere conclusions. Langenberg v. City of St. Louis, 355 Mo. 634, 197 S.W.2d 621.
The judgment appealed from is affirmed.
McCULLEN and BENNICK, JJ., concur.