Opinion
No. 42998.
October 13, 1952.
APPEAL FROM THE CIRCUIT COURT OF PUTNAM COUNTY, V. C. ROSE, J.
L. E. Atherton, Milan, for plaintiff appellant.
Charles B. Fitzgerald, Unionville, for respondents.
This is an appeal from a judgment of dismissal entered upon the trial court's sustention of defendants' motion to dismiss plaintiff's petition.
Plaintiff, in the first count of his second amended petition, alleged that he and defendants had entered into a contract, November 22, 1950, by which he had sold to defendants the stock of merchandise, furniture and fixtures of a jewelry store for the sum of $10,000, "same to run for ten years without interest as evidenced by note for the amount, with the second party (defendants) to have the privilege to pay on said note in January of each year" any multiple of one hundred dollars. It was further alleged the agreement contained the provision that "the second party agrees to keep up the stock of goods, furniture and fixtures to the unpaid balance of the said note."
Plaintiff further stated that defendants have executed their note to plaintiff for $10,000 and are in possession of the store; that it was the understanding of the parties that the contractual provision for keeping up the stock of goods, furniture and fixtures to the unpaid balance of the note was for the purpose of securing the payment of the purchase price; that the contract had been so understood and construed by the parties; and that "by reason of the premises said instrument created a vendor's lien and chattel mortgage," and "should the stock of goods, merchandise and fixtures and furniture not be kept up to the unpaid balance on said note, a breach of condition would arise and plaintiff would be entitled to foreclose said lien or chattel mortgage by appropriate action * * *."
Plaintiff prayed the court to render judgment declaring the interests of the parties to the contract and to find that plaintiff has a lien and the defendants are required to keep the stock of merchandise, furniture and fixtures "to the unpaid balance on the note"; and that, in the event the stock of merchandise, furniture and fixtures falls below the amount of the note, the condition is broken giving plaintiff the right to foreclose.
Plaintiff, in the second count of his petition, reaffirmed the allegations of the first count thereof, and further alleged that defendants have breached the contract by permitting the stock of merchandise, furniture and fixtures and the value thereof to fall below the unpaid balance of the note, on which note, it was alleged, the full sum of $10,000 remains unpaid. Plaintiff requested the findings that the condition of the lien had been broken and that he is entitled to enforce the lien by foreclosure; and plaintiff prayed for such an order and judgment.
The trial court sustained defendants' motion to dismiss on the stated grounds,
"1. That the second amended petition fails to state any facts sufficient to constitute a claim or cause of action upon which the relief prayed for in said second amended petition can be granted. * * *
"3. That this Court does not have jurisdiction under the Declaratory Judgment Act in that the plaintiff, if he has a cause of action, has a suitable remedy at law."
Plaintiff-appellant contends the trial court erred in sustaining the motion to dismiss as to the first count of the petition. Plaintiff-appellant urges that the allegations of the first count entitled plaintiff to relief, under the Declaratory Judgments Act, Section 527.010 et seq. RSMo 1949, V.A.M.S., from uncertainty and insecurity with respect to his rights, status and other legal relations under the terms of the contract; and that the court erred in dismissing the second count of the petition, it having been alleged there was a breach of the condition of the alleged lien in that the stock of goods, furniture and fixtures had fallen in value below the amount of the unpaid balance of the note.
Defendants-respondents contend the trial court correctly sustained the motion to dismiss because the facts, they say, as stated in the second amended petition were insufficient in stating a claim for relief or to authorize the trial court to render judgment under the Declaratory Judgments Act. Defendants-respondents argue that plaintiff's petition merely pleads a construction of the contract as interpreted by the pleader; and that, in examining the question of whether a petition states a claim as raised by a motion to dismiss, the court may consider only those allegations which are well pleaded, and may not consider as admitted the mere conclusions or interpretations of the pleader. Defendants-respondents assert that under the facts as well stated in the second amended petition plaintiff has no lien for the purchase price of the merchandise, furniture and fixtures, but must look solely to the personal responsibility of defendants for payment of the debt evidenced by the note.
At the threshold of our approach to the review of this case we must search out the ground for the appellate jurisdiction of this court, although this court's appellate jurisdiction has not been questioned by the parties. Rust Sash Door Co. v. Gate City Bldg. Corporation, 342 Mo. 206, 114 S.W.2d 1023.
It would seem that this court's appellate jurisdiction, if it exists, must rest upon the ground of "the amount in dispute". V.A.M.S.Const. Art. V, § 3. The amount of defendants' alleged indebtedness to plaintiff as evidenced by the alleged note of $10,000 has in no way been disputed by defendants, Rust Sash Door Co. v. Gate City Bldg. Corporation, supra; on the contrary, defendants, by their motion to dismiss, have in effect admitted the amount of the debt and the execution and terms of the note. Moreover, plaintiff does not seek a money judgment. The controversial contentions are those of plaintiff's rights to a lien and to the foreclosure thereof; and plaintiff seeks the relief of the declaration or establishment of his rights to a lien and to foreclosure.
It is the rule that where the relief sought is not that of a money judgment, but other relief, "the amount in dispute" must be determined by the value in money of the relief to the plaintiff, or of loss to defendant, should the relief sought be granted, or vice versa, should the relief be denied. If either is affirmatively shown by the record to be necessarily in excess of the sum of $7,500, exclusive of costs, then this court has exclusive jurisdiction of the appeal. National Surety Corporation v. Burger's Estate, Mo.Sup., 183 S.W.2d 93; Fanchon Marco Enterprises, Inc., v. Dysart, Mo.Sup., 189 S.W.2d 291.
In our case the value in money of the relief sought by plaintiff could not exceed the value of the merchandise, furniture and fixtures which plaintiff claims are subject to the asserted lien. It was alleged by plaintiff that defendants have permitted the stock, furniture and fixtures to become depleted so that the value thereof is below the amount of the unpaid note; but the extent to which the stock of merchandise, furniture and fixtures has been permitted to become depleted in value is not alleged; nor does the record in any other way affirmatively show that the stock, furniture and fixtures are now of value in excess of $7,500.
We are of the opinion the record does not affirmatively show a ground for invoking the appellate jurisdiction of this court.
The cause should be transferred to the Kansas City Court of Appeals.
It is so ordered.
LOZIER and COIL, C.C., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court.
All of the Judges concur.