175 Mo. App. 296 | Mo. Ct. App. | 1913
Plaintiff, for some years prior to this suit, had been engaged in operating the mule barns belonging to the St. Joseph Stock Tards Company. About April or May, 1910, these barns became infected with glanders, a contagious and infectious disease in horses and mules which always results in a delayed though certain death. Defendant had worked as an employee of a customer of the said bams in the buying and selling of mules therein. His employer having failed, he determined to go into the business of buying and selling mules himself and was preparing to establish his business at the town of Hall’s Sta
Thereupon, relying on said agreement, defendant handled his mules through said barns and transacted all his financial matters in relation to that business through, and on the books of, the plaintiff. About June, 1910, the defendant noticed that something was wrong with his mules, and, while he suspected glanders, he was not sure of it until some time later. Along in October, 1910, he ceased doing business through the plaintiff and at that time the account held by plaintiff against him amounted on the debit side to something over $10,000 with credits thereon' sufficient to reduce the balance due on’the account to $1756.13. All of defendant’s transactions, with plaintiff were had through Vant.
Some time in November or December, 1910, it became certain, through an investigation made by a veterinarian connected with the barns, that at least eight and possibly more of defendant’s mules were infected with glanders. These eight had been handled by defendant through the plaintiff’s barns. The next day after getting the veterinarian’s report, defendant informed Vant of the disease in his mules. Thereupon, according to defendant’s version, Vant and he after-wards reached an agreement whereby plaintiff took
A year or more thereafter this suit was brought to recover the balance due on the account. Defendant pleaded the contract and settlement made pursuant thereto hereinabove outlined. To this plaintiff filed a reply which was a general denial. The account being admitted, defendant was held to have the burden of proof and was required to offer testimony in support of his contention first. He did so, and at its conclusion plaintiff asked an instruction in the nature of a demurrer to defendant’s evidence, directing the jury to find for plaintiff. This was refused. Whereupon plaintiff asked and received several instructions upon the issues presented by defendant’s answer. The jury found for the defendant. Plaintiff appealed.
The first contention is that the settlement set up by defendant was void and unenforcible because it in
As we understand it, however, the settlement did not violate, nor did it involve the violation of, the statute in-question. The cancellation of the debt evidenced by the balance due on the account was not a payment made for the mules pursuant to a contract of purchase and sale thereof. The cancellation was an act done in holding defendant harmless from- loss sustained on account of glanders by reason of having transacted his .mule buying through said barns. It was merely a compliance with that agreement and contract. The consideration moving plaintiff to settle the account was not the value of the mules.- They were doomed and worthless. The consideration for settling the account moving the plaintiff was the release from liability for defendant’s glander losses, which liability arose out of plaintiff’s agreement to hold defendant harmless therefrom if he would transact his business through its barns. Both Vant and the defendant knew the mules were suffering with glanders. Both knew perfectly well that the purpose of the transaction was not to effect an exchange of the mules for the account or of the account for the mules, but it was to perform one of the terms of the original agreement entered into by which defendant agreed to buy and sell mules through said barns provided plaintiff would protect him from loss by glanders incurred thereby. It is true, on cross-examination, defendant, by assenting to questions framed for that purpose, was made to appear to say that he traded the glandered mules to plaintiff for the account and agreed
It is contended that Yant had no authority to agree with defendant that plaintiff would hold him harmless from loss by glanders if he transacted his business through its barns. But.there is evidence to show that all the business defendant had with plaintiff was through Yant as the latter’s agent. It also appears that all the business of plaintiff’s board of directors was transacted informally. And that at a meeting of the directors Yant was authorized to see defendant and attend to the disposal, settlement or adjustment of the account between them. Authorizing Yant to see defendant and adjust or attend to the disposal of the account is an implied admission that defendant had some sort of a claim against the plaintiff, and, as there is no evidence of any other claim he- had against it except the one growing out of the right to be held harmless from loss by glanders, this is sufficient to enable the jury to infer that this was the claim to be adjusted. If defendant had no such claim against plaintiff that was valid, why authorize an adjustment? We cannot say there was no evidence from which could be inferred Yant’s authority to make the original agreement to hold defendant harmless.
Neither can it be said that, even if the error in refusing plaintiff’s peremptory instruction has been waived by the asking of instructions inconsistent therewith, nevertheless it is the duty of the courts, on their own motion, to refuse to enforce an illegal contract whenever one appears, and, therefore, we should so act upon this one. This rule cannot be applied here
The judgment is affirmed..