Opinion
No. 21338.
March 6, 1950.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, JAMES W. BROADDUS, J.
Ilus W. Davis, Kansas City, Dietrich, Tyler Davis, Kansas City, for appellant.
Cortner Beals, Kansas City, Perry M. Cortner, Kansas City, for respondents.
Suit to recover money paid to defendant as a refund of overcharges paid by plaintiff, for gas furnished to "Park Manor Cleaners," a business formerly owned by plaintiffs but sold by them to defendant, said overcharges having been made prior to said sale but having been refunded by check payable to "Park Manor Cleaners" after the sale. Judgment was for plaintiffs in the amount of $660.60, which includes accrued interest; and defendant appeals.
The facts are not in dispute. Robert T. and O'Dell Dixon acquired the "Park Manor Cleaners" on September 1, 1943, and operated same, paying the gas and other bills accruing, until April 1, 1945, at which time they sold to plaintiffs. Plaintiffs operated same and paid the gas bills, until October 22, 1947, at which time they sold to defendant. The Gas Company overcharged both prior owners, for gas service, in the amount of $1093.40. Some time after plaintiffs sold the business to defendant the Gas Company delivered checks, totaling the aforesaid amount, to defendant, payable to "Park Manor Cleaners," said checks representing a refund of the overcharge.
When plaintiffs sold the "Park Manor Cleaners," they executed a contract which provided, among other things, the following: "That the said Vendors do hereby agree with the said Purchaser to sell and assign unto him the said Purchaser, all of the good will, stock in trade, fixtures, machinery, utensils, implements, the business name `The Park Manor Cleaners Dyers' and their 1947 Chevrolet Truck #EAA 125163, their right to telephone number Logan 3730 and the contract with the telephone company in connection therewith, and all other interests which they may have in the business known as `The Park Manor Cleaners Dyers' at 4802-06 Belleview where for the past several months carried on the trade or business of cleaning, dyeing and pressing of clothing." (Emphasis ours.)
Defendant contends that the overcharges for gas service were some of the "interests" which plaintiffs had "in the business known as `The Park Manor Cleaners Dyers,' * * *" as mentioned in said contract, and that they are entitled to retain the proceeds thereof.
It is admitted that, at the time of the sale, neither party had in mind any possible refund of money for overcharges made for gas service; but that fact is immaterial if the language used is broad enough to include the property here involved. 55 C. J. 223; Cram v. Union Bank, 42 Barb., N.Y., 426; Livingston County Bank v. First State Bank, 136 Ky. 546, 121 S.W. 451.
No Missouri case is cited by either party, and they concede there is none. Defendant cites and relies on Cram v. Union Bank, supra. In that case vendor purported to sell his entire interest in a partnership, and it was later discovered that the partnership owned a bank account which everyone had completely forgotten. The contract of sale contained the following clause: "* * * and all other property and valuable thing or things, belonging to said firm, of every name and kind." The court held that the bank account was transferred even though the parties did not have it in mind at the time of the sale. The decision is sound, on the facts there involved, but it is not persuasive in this case.
Defendant cites Livingston County Bank v. First State Bank, supra. In that case a bank contracted to sell all of its assets to another bank but, before delivery thereof, it sold and collected for two judgments it held against defaulting debtors. The court properly held that these judgments were a part of the bank's assets, at the time the contract was made, and that title thereto passed, under the contract of sale, to the purchasing bank; but the case is not in point here. In re Friedrich's Estate, 107 Cal.App. 142, 290 P. 54, also cited by defendant, deals with the construction of a will. It is not in point.
Plaintiffs rely heavily on Fletcher v. Winnfield Bottling Works, 160 La. 261, 107 So. 103. The owners of the Bottling Works had filed a claim for refund of alleged overpayment of taxes. Before the claim was adjudicated they sold the plant and the claim was thereafter allowed by the U.S.
The vendee received the check, made payable to Winnfield Bottling Works, and claimed the proceeds under a clause in the sale contract whereby vendor sold "good will and attendant interests." The court held that the interests there mentioned referred to interests connected with "good will." However, the court held that the money involved was, prior to its being paid for taxes, the property of vendor; that the burden was on vendee to prove a clear right of ownership by showing how and when it was vested in him; and that he had failed to sustain that burden. We think that is good law and is peculiarly applicable to the facts in the case at bar.
The real question here is: Is the language of this contract broad enough to include the proceeds of claims for gas overcharges, accruing to plaintiffs long prior to this sale? We think not. "Interest" is defined as anything profitable or beneficial, 47 C.J.S., 1; but it is capable of different meanings, according to the context in which it is used or the subject matter to which it is applied, 47 C.J.S., Note 1, page 1. We think, as here used, it means a valuable property or right, forming a part of the business sold, a part of said business and its assets. We so hold because plaintiffs sold only such of their interests as "they may have in the business known as `The Park Manor Cleaners Dyers.'"
The phrase "all other interests" constitutes words of general description. Generally, where words of general description are used in connection with a specific enumeration of articles, the general description will include only articles similar to those specifically mentioned, 55 C.J. 223. It is noted that the articles specifically mentioned in the contract were articles and rights that were used in and directly connected with the operation of the business. Therefore, the words "all other interests" should be construed to mean and refer to all other valuable property or rights owned by plaintiffs, appurtenant to and used in connection with the operation of said business, and not previously specifically enumerated.
Certainly, money paid by plaintiffs, and by former owners, for gas services, previously rendered (not overcharges), constitutes no interest in the business sold. Money used in payment for such services, as well as all other moneys paid out for similar services over a long period of time, ceased to be or form any part of the assets, or interests, of the business, at the moment they were paid. Such money was severed from the business and, in the very nature of things, never again could be united with the assets of the business. How could it be different as to such money, erroneously paid? If we assume that the money that was paid out to the Gas Company and which formed the basis for this refund, was money which, at some time, formed a part of the assets of the "Park Manor Cleaners," it certainly did not constitute any part thereof from and after its severance. Instead of the checks being for gas refunds, suppose they had been delivered in payment for machinery formerly used in "Park Manor Cleaners" but sold, delivered, and replaced by other similar machinery, long prior to this sale. It is just as logical to hold that defendant would be entitled to claim in that case as to hold that this gas refund constituted an interest which plaintiff had in the "Park Manor Cleaners" at the time of sale.
The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed.
DEW, P. J., and CAVE, J., concur.
BROADDUS, J., not sitting.