Brown v. Covenant Mutual Life Insurance

86 Mo. 51 | Mo. | 1885

Black, J.

— The defendant leased to the plaintiff a farm for two years, from March 10, 1880, upon certain terms. Defendant reserved the right to sell the place, and plaintiff agreed to yield up possession on payment of a fair compensation for possession. The defendant notified plaintiff that the land was about to be sold, and on the twenty-fifth of May, 1881, by letter, notified him that the land had been sold, and also stated: “We have-written to Mr. Abbott to see you, and settle with you.” Defendant also wrote Abbott, giving him authority to-settle with Brown. Plaintiff and Abbott met, and made-a settlement, by which the plaintiff ivas allowed seven hundred dollars for immediate possession, to recover which this suit was instituted. The letters from defendant to Brown and to Abbott, gave the latter ample power to settle, and that, too, without submitting the same to-defendant for ratification. The evidence tended strongly to show that an unconditional settlement was made. Abbott’s testimony was, however, to the effect that they had some trouble in adjusting the matters, and that the-amount agreed upon was to be submitted to defendant for ratification, before the settlement should become final. That the settlement was made upon the condition that the company approved it.

1. The court, of its own motion, gave an instruction to the effect that if it was understood that the settlement should be approved by defendant before the amount should be paid, then the finding should be for defendant, unless the jury should find that the settlement was thereafter ratified by the defendant. The vice of this instruction is that there was no evidence whatever of a ratification. On the contrary, the evidence is that the defendant repudiated the settlement, and continued to-do so. The instruction given at the request of plaintiff, and the one given by the court, omitting the qualification as to the ratification, would present the whole case fairly to the jury. It was error to give the instruction with the-qualification.

2. The discharge in bankruptcy, pleaded by plaintiff to the defendant’s set-off, was a complete defence. The evidence offered by defendant, to the effect that it had no notice of the proceeding in bankruptcy, wag; properly excluded. The discharge read in evidence was-conclusive. The regularity of the proceedings by which, the discharge was procured cannot be inquired into collaterally. Bump on Bankruptcy (10 Ed.) 286 ; Thornton v. Hogan, 63 Mo. 143.

There is no merit, whatever, in the other questions presented by the appellant. But, for the error before mentioned, the judgment is reversed, and the cause remanded for new trial.

All concur.