*1 of his duties required in the he was course when ably' safe condition the issues fairly submits as whole instruction it. The use did misleading. The court is not by plaintiff’s evidence giving it. err in sustaining defendant’s court erred circuit the learned We think sustaining is therefore motion said trial. Its order for new motion directions to that court is remanded cause and the reversed judgment enter the verdict and reinstate order aside said set Fitzsimmons, verdict. Westimes as of the date thereon concur. CG., Cooley, C., adopted foregoing opinion
PER CURIAM: The judges concur. All the court. opinion of the as the Bucking- I. Charles H. Frank E. C. v. (2d) 1071. W. S. ham, Appellants. Two, August Division *2 Conrad, appellants. L. Henry S. E. Durham Hale Houts for Ray- A. Beery J. N. Walter Johnson, Prince, M. C. W. James mond respondent.
637 judg- appeal adverse FITZSIMMONS, C. Defendants from an in the jury sum verdict of a Circuit in the ment City. County at Court of Jackson Kansas I. complaint appellants is that erred first courf whole overruling application order of reference. The their for an trial is not subject of a matter discretion. The court reference is Hay v. any [Fitzgerald action at law to a reference. bound make
ward, Koch, 516; Jamesport v. 326 Exchange Mo. Bank of Home subject (2d) 369, 32 S. W. But the trial court’s action Mo. 86.] Tamm, S. 385, 39 Lake v. 138 Mo. review. Coeur Ice Co. [Creve denying W. Whether the trial abused its court discretion 791.] they when pleadings as a reference be decided from the should City Louis, v. St. appellants application. [McCormick ]. Mo. 65 S. W. c. 1044.] respond charged The amended petition that on December mortgage ent was the owner of certain installment notes made T. Wyatt, totaling $18,000, B. Charles Anna on said secured date Paseo, City, property deed of located at Kansas trust *4 Missouri, interest; bearing per six were and cent these notes that placed custodjr keeping appellants in the and of that time hold at to security money for an owing appellants respondent as then to and be, was, by appellants additional sum about to which for and loaned a, respondent of in purchase property the use the of the Paseo and contemporaneous Wyatt; appel sale thereof said Charles T. that to they lants collected installments notes the interest and on these respondent appellants was owing by until the amount to became due satisfied, liquidated en fully respondent and at time- became petition possession titled to' of notes. The further amended agent charged Buckingham attorney that and appellant acted as for respondent in transaction acted of that and also as a holder escrow parties all deal documents .for to the and that he all the connived conspired appellant respondent Rechnef to wrest from and said notes; respondent appellants that both to to disclose refused any respondent' 'notes and collected on said denied that had amount .proceeds, proceeds in the notes or their that interest appropriated by were and notes collected that appellants and wrongfully maliciously converted appellants and September, six value of the tbeir their use. The proceeds and own notes were damages in amount placed $18,000, was at actual *5 or of all the. set-off so-called claims should be proceeds the by appellants on mortgage realized $18,000. the totaling *6 640
step further and not ask did even an instruction on tlie measure damages. But we do not feel that this fact to should cause us rule Bane, contrary to expression the latest of the Court en In case the Ternetz 252 (Mo.), 65, v. St. Louis Lime and Cement Co. S. W. 70, reply objection l. c. the Court en Bane in to an of defendant that given indicating no theory instruction was the lawof under which plaintiff recover, “Appellant’s could observed: position is untenable. required by given Instructions are not the statute to be in civil cases. covering The defendant could have asked instructions the law of the case, plaintiff if failed so. v. Railroad, to do 255 Mo. c. l. [Powell 628; Morgan 454, 455, Mulhall, 164 S. W. v. 214 Mo. 114 4; Wingfield Railroad, 257 l. 359-362, 1037; W. v. Mo. c. 166 S. S. W. Hammerle, 27 l. Upon Clark v. Mo. c. foregoing au 71.]” assignment against appellant. we rule this error thorities III. The facts in operations case typical are of real estate large prior cities October, depression period beginning in Respondent capital. Buchanan was a small operating trader on a Appellant Rechner was real money put a lender of over needed estate deals. Appellant Buckingham such lawyer, was a skilled in deals, acting prin- sometimes as a counselor a but at other times as cipal participant. All building three in Kan- had officesin the same sas City, Missouri, Buckingham being next Rechner. door to Buchanan in November, 1920, learned Farm Home that the Savings and Loan Park- Association foreclosure the had taken on Apartments view willing Paseo, City, Missouri, at and was Kansas $40,000 to sell property $50,000 $10,000 for cash and terms of purchase-money deed payable monthly of trust $580 installments of each. Buchanan option obtained an buy apartments on these terms, and he then person went in search of a over who would take profit deal at a him, relative, E. Buchanan. E. Jones had Wyatt, Charles T. Buchanan, by whom procurement of Jones, agreement made an sale property $70,000, representing gross paper profit $20,000 by price over the asked cash, Farm Wyatt and Home only $2,000 Association. But had whereas the Farm $10,000 and Home Association demanded In cash. emergency, Buckingham, went to lawyer, soon Rechner, money lender. The result was a agreement written .1920, Lanier, dated December between L. E. Buchanan’s straw- deal, man in the Wyatt, whereby Lanier contracted to sell and buy Wyatt property $70,000 payable “$2,000 follows: $40,000 by cash; assumption by Wyatt of payment of the first trust; $12,000 deed of a second deed of trust on apartments each, monthly pay-able sixty $125 installments of in- and a final $4,500; $6,000 by installment of a third deed of trust on the same apartments, payable $1,000 in four annual eaffii, installments and. $2,000; animal installment a fifth a first deed trust’ Missouri; on real estate at Street, No. City, Chestnut Kansas $2,000 by conveyance of six one-half in Kansas acres of land City, Kansas; $2,000 by Wyatt note executed as maker and *7 indorsers, privilege Wyatt two others as pay with the' to to $1,000 note, cash in privilege Wyatt lieu of this that Appellant exercised. Lanier-Wyatt acknowledged an addendum to the contract receipt of payment $1,000 $6,000 this last cash and of the filst property escrow, deed of trust on the Chestnut Street in the contract having provided purchase that these items of price the be so de- posited with Rechner.
The deal with Farm the and Home Loan pur- Association for the property Lanier, chase the respondent’s was consummated. straw man, took corporate subsidiary title from a of the association and on December executed the he first deed of trust to the $40,000 conveyed association. He in apartments Wyatt, turn with to who his date, wife on the same December executed the second deed Bucking- trust for and the deed third of trust for $12,000, $6,000 ham (appellant) Tn trustee for Walter a straw man. Macer. deal, evolution, complications meantime in all its took on as such Respondent promised trades do. Buchanau had E. Jones a to E. $6,000, apartments half-interest in the third trust deed of for for Wya'tt procuring purchaser. the services of Buchanan Jones as a Buckingham. dealings had appellants, other Rechner and had financing outlays and For these and for their services and in the apartment deal, appellants had a reckon- consummation of the house agreement ing written with Buchanan and Jones in the form of a Buchanan, re- Buckingham, appellants, and and between Rechner agreement between spondent, January 20, 1921, a like dated and Rechner, January Buckingham, Jones, Buchanan and dated Rechner-Buckingham-Buchanan recited that Rechner contract Buchanan, acting rep- sums enable advanced certain unstated deal; Lanier, apartment that house resentative of to consummate necessary agent attorney services Buckingham rendered and sale;' in- perfect complete that Rechner an and to had the title $1,838 in the third deed of trust for amount of $6,000, terest to the Jones; that Buchanan .jointly owned which was Callaway County deal for evi- to Rechner on was indebted $635.60 amount; that Buchanan was also indebted that by his note denced Callaway exclusive of in the sum of County $9,118 to Rechner Buchanan-Jones debt of inclusive of the $1,838. but debt of $635.60, agreement provided party premises, three Upon these apartment house was $12,000 on the Paseo deed of trust second application property Rechner until remain the it debts of Buchanan to Rechner under be made payments eight per per cent $9,118 with interest at the sums $635.60 ob- extinguished. Buchanan’s 20, 1921, January annum, from in the first pro reductions subject to rata $9,118 was ligation for in that debt pay their should $1,838 if Buchanan and Jones sum of $6,000; trust for third deed of pledge amount secured apartments, purchaser of the Wyatt, the $580 if the sum of second in month- the first Home Association the Farm and pay at once to should third, mortgage; the first ly amount on installment in that obligation upon an liability accrue $700 if no should the sum of amount, gave Buckingham Reehner, and Buchanan corporate sub- Association its Farm and Home Loan hold the agents com- of other real estate sidiary against claims harmless apartment house. missions the sale of January agreement Reehner-Buckingham-Buchanan-Jones $6,000 third pledge with Reehner of the 21, 1923, was a contract of trust, previously mentioned debt deed of until the agree- four-party debt, mentioned in to him. The items of purchased (which apartment house when Coal was in the ment were: *8 allowance) $288; settling services in claimed and for which the seller (involved perfection apart- liens lawsuit of the title to and house) executing agreement, $1,500; $50. ment cost of the escrow by authority with acts done up trial below was taken of these The authority. principal agreements points such The or under color of controversy $9,118 over the items of the debt of dispute of Reehner, of the first contract from Buchanan to the terms but due instrument, attorney’s in that in the sum not detailed fees total of by Buckingham $5,800 charge $1,250 and a service claimed of claimed by Reehner, respondent and other asserted liabilities of Buchanan not contemplated by agreements charged against but the collections mortgages. under the plot supplemental
The of this financial drama thickened with trans- 10, 1921, May assignment by actions. Exhibits dated an evidenced Buckingham respondent appellant rights of Buchanan Buchanan’s apartment house, and third deeds of trust on the second under January 21, 1921, $2,600 contracts of 20 and in consideration of acknowledged. receipt They of which Buchanan also evidenced a privilege buy assigned rights to Buchanan to back these on or before (a May year later), payment by Buckingham on him to of $2,760. charged This latter amount was as a loan to Buchanan on through money Reehner’s books all parties transactions of the passed. testimony Buckingham, Reehner and their book- $2,000 keeper attorney’s a loan $600 was it was with for fee Buckingham procuring the loan. Buckingham, for And added Rech- bookkeeper testimony their their ner and treated Buchanan as mortgages having rights deposited after day repurchase passed action Buchanan. had without parties relation A later event in the to the was apartments sold, Wyatt property sub- refinancing of loans. In time last at mortgages. through hands and ject passed It several to the $30,000 ownership. At that time there came into Mr. Watson $7,000 due $40,000, and originally for due on the first deed of trust $12,000 and originally for trust, on the second and third deeds of burden- owners, found $6,000 Watson, like the other respectively. trust, $125' first deed of per month on the pay $580 some the offs of there- year the third. He second, $1,000 per per on the month monthly $30,000 for without arranged first of trust fore for a new deed third the second this, had to have pay offs. To consummate he trust by a second deed replaced new deeds of trust released and third. on the old second and $7,000, the balance due third second refunding plan. old agreed to this He caused by the new second replaced and to be of trust to be released deeds $30,000 recorded. been new first for after the had monthly same had the encumbrance notes the new second secured Buckingham testi- third. second and pay offs as the old and annual ab- refunding loans. The of the agreed to the fied that There were up printed pages. testimony given takes stract facts statement of further evidence. The 66 exhibits offered in assign- large for the examination should be record reserved ments of error. complain as to Appellants the verdict is so excessive
IV. question judgment any other require reversal independent appear an excessive Upon impression first it would to be in the case. $18,000 for damages in excess of gave verdict which $18,000, principal sum of promissory notes for the the conversion of having alleged that he de proof respondent by pleadings his security his new old and posited appellants *9 pro time when the and, having as of the debts, laid the conversion judge must maturing But we notes had his debts. ceeds of the easting first by aside in this case question excessive verdict the impressions of an repeat many figures. Let our observa analyzing us and prolonged controversies at the trial most bitter and were tion that the Buckingham charged appellant over the fees which alleged in professional to have been rendered services Buchanan entered matters. These fees were apartment other deal and house against charges the collections upon appellant Rechner’s books as There by and third deeds of trust. upon the second the notes secured which, items, disputed in view the they of should be treated fore verdict, jury presumed be to have found must amount of the justice against appellants. will ends of not be served nor the many by pages opinion narrative of the enhanced this worth of testimony According him Buckingham’s fees. services aud about According for and were rendered. were the services contracted Buchanan, only Buckingham services which in rendered were apartment with the house, connection sale of the for which services agreed pay Buckingham $500. Buchanan appellant Buckingham The total amount of fees in favor of and charged against respondent mortgage by Buchanan’s note account appellant Rechner, matter, who held himself as a out trustee in $5,800. disputed charges except all these a fee for in services closing the deal fixed Buchanan’s at $500. evidence items, namely between $5,300, may pre- difference these be jury have been disallowed arriving sumed to in at its verdict. charge Buchanan also controverted Rechner for his services, $1,250. in sum disputed by
The sum of these items Buchanan and therefore de- appellant’s in determining ductible accounts whether ver- $6,550. excessive, dict is is We do not charges overlook the fact that several of these fee Buckingham charge and the fully service covered agreements writing in to which party. Buchanán was a Neither do we applicable believe under the law to the facts and in evidence relationships parties attorney t.o the client, trustee — beneficiary respondent Buchanan be held the letter of should those — agreements upon question whether the verdict is excessive. may Buckingham We further observe that did not in fact collect any from Buchanan of those fees. The sums were entered on Rech- charges ner’s books Buchanan’s account against collections mortgage According books, notes. Buckingham to those drew out 4, 1924, January $3,500, of the account on which Rechner’s accountant Buckingham’s entered as full of share. In effect therefore Buckingham’s charges balance of service over went to Rechner. figures: Appellants, Now for in support more their contention excessive, is append that the verdict pages their brief four which appellants call a statement the Buchanan account with Rechner Buckingham apartment deal, “disregarding house all ruling against controversy items of them the defendants and ” dealing with admitted items and interest onfy. thereon Appellants, reply brief, in their confess two errors in the statement contained in their brief. These errors are to Buchanan’s benefit to the amount of $1,788. Upon figures reconciliation briefs, appellants the two that, being them, all controverted items against concede ruled they among $6.336.40. But charged owe Buchanan the items against re- spondent $2,500 appellants’ statement Buckingham’s are first fee of only admitted the amount $500 and Rechner’s *10 $1,250. charge which wholly disputed. is service errors, These two amounting $6,336.40 $9,586.40. to added to makes a total of amounting $3,250 erroneously to two items The included as undis- in Rech- of the accotmt entered appellants’ statement were putecl 4, 1920, and' against charges on December ’s Buchanan ner books charges against their burden of the interest they in the bear account eight from per cent annum per interest at Therefore Buchanan. judgment, September 14, 1929, date of 4, 1920, December to $9,586.40 to surcharged $3,250. interest on This added should be which adjustments, amount which, is the $11,967.83,’ makes after our items be respondent if controverted appellants admit be due to to against ruled them. jury thus:
Respondent justifies the verdict on the other hand ..................$18,000.00 Principal notes of deed of trust September 1, January 20, from Interest at 8% 12,360.00 ...................................... ................................$30,360.00
Total respondent proper which Less amounts admits are 9,487.24 charges years against him with interest added..... three due................$20,872.76 respondent Amount which claims is mortgage were Respondent respects. *11 ..................$21,898.12 12, 1928 accrued to December interest 1,272.42 September 14, verdict...... Blus interest to date of ......................$23,170.54 Total 11,905.04 by respondent....... Less counter indebtedness conceded justified may as not ex- Balance for a verdict be ......................................'........$11,265.50 cessive approached standpoint respondent’s We this result from the of admissions, already that, appellants’ admissions. have seen under We $11,- respondent upon the amount due to uncontroverted items is only 967.83, adjustments proper when are made. difference is nearly $702.33. amount $11,265.50 We believe that the more correct justifiable judgment respondent’s of ad- up of a it is because made ac- undisputed figures appellants’ mitted indebtedness and of the of countant.
We do not appellants’ proposition assent to that the verdict of $18,155 in- require judgment is so excessive as to a reversal of dependent any sustaining precedents of other Aside from our cause. view, note twice, resulting we that the case was the first trial tried jury Unguided, new trial. punitive damages. did award amid figures, charges credits, hy mountains of instructions re- quested by gave respondent, jury sign passion prejudice. no of or The verdict in responsive this case is more curative treatment of modification than in an personal injuries. action for V. Appellants requested give court fifteen instructions. gave The court six and refused assigned nine. Error is of to each ‘‘ (cid:127) the refused instructions. Refused E Instruction is as follows: The jury is you if instructed that find and believe from the evidence that the defendant Charles H. appropriated only to his own use part such payments made $12,000 on the note and series aggregating notes $6,000, mentioned in evidence, paid as in full claims which individually he owned plaintiff and which the was ob ligated pay, you may find from evidence, and that he made no personal further claims to notes, said but that all other collections so made were held or for Buckingham the defendant for payment obligations plaintiff, due him from any, evidence, if as shown assignment and under an of notes Buckingham, to said any, if evidence, your shown verdict must be for the defendant Charles H. Rechner.”
Appellants argue support assignment of this of error that there was in assignment evidence an $12,000 *12 Buck- that notes; to make the loan and that Rechner refused posited Rechner Buchanan ingham procure the loan from to proposed then to 10, 1921, and Buckingham. May guaranty by This was done on on a on Rechner’s was entered the shows that transaction evidence the apartment house account charged against Buchanan’s a loan hooks as as follows: $2,760 that this sum was distributed in the sum of Buckingham Buchanan, paid but not to $1,612 paid $600 to allotted loan, to guaranteeing $388 procuring in for his services interest on books, $160 in not stated Rechner for reasons $2,000 books, appellants’ can- year. appears from It thus one $2,760 charged, Buchanan celed checks and statements that out of Upon appellants’ $1,612 retained the rest. received and Rechner and financial state- proof, testimony, own their their books of account ments, recognized after continuing right in Buchanan’s the notes was buy The May reputed option back. 10. the limit of his to them recognition only any by Rechner in his evidence of distinction respective rights Buckingham a state- o'f Buchanan and was days bookkeeper his before ment drawn off Rechner’s books a few request pur- This statement appellants’ the trial at counsel. ported Buckingham’s claims, leave out individual and closed per the words: “Rechner out as above statement November 1929. September, 1924.” That assertion was made for the first time in assignment This is "without merit. of error Appellants
VI. assign error to the refusal of the court to give requested their Instruction M. This instruction directed the jury appellants to return a if jury verdict for should find that respondent May 10, 1921, $2,600 Buchanan on in' consideration of assigned Buckingham $12,000 mortgage his interest in the series of $6,000 mortgage notes, notes and of and that Buchanan did not avail given privilege buy himself him back the notes for May on or before In of our appellants’ view comments on preceding evidence an paragraph, instruction verdict appellants predicated assignment qual agreement on the without jury ification if the should find that was transaction fact properly loan was refused. J, H, appellants’ I, We have D, examined refused Instructions O,K, Q, declining and do not find that the trial court erred in to s’ive them.
648 complain given Appellants
VII. of error in Instruction C-l own instruction is “You the court of its motion. The as follows: does not mean to assume are further instructed that court any the matters mentioned true or established or referred to you instructions, but leaves to determine evidence whether or such matters have been established evidence.” not court, request gave L, of appellants, at the Instruction jury informed admitted he owed aggregating $2,589.02. appellants five appellants items C-l complain wiped that Instruction out the admissions stated given being L Instructipn and that the instruction after close evidence, deprived appellants opportunity give of their proof question the admitted items. The jury is whether the was Instruction C-l admitted misled items. We are jury opinion that the misled and therefore that instruction Collins, C-l not error. v. App. Mo. 199 S. [Edwards 580; (Mo. 1092; v. App.), W. Sterr Wells W. v. S. Faulkner Telegraph (Mo. Co. App.), (2d) Western Union S. W. 1088.] *13 remaining assigned VIII. The last error relates to the admission way impeachment appellants. of evidence of of We do not believe complaint enlargement that this warrants a further opinion. of this opinion assignment We of that this are should be overruled. appeal argued IX. 1932, This was April submitted 22, during Term, 1932, of April. Supreme the the owing But Court. complicated case, the nature of'the and the January 1, retirement on judges 1933, of two of the three this upon of division expiration the terms, of their the decision of has appeal the been hindered and delayed. has filed a suggestion There been here of the death of 1, E. respondent, Buchanan on 1932, subsequent C. December early Savings the In the case submission. of Central Bank Shine, v. 456, upon 48 which was an action Mo. a written guaranty of the judgment another, the of the trial plaintiff debt of court for was cause was reversed the remanded for a new trial. The opinion (defendant) of having this court closed thus: “Shine died since cause, this clerk the submission of the will up judgment enter the nunc pro last term tunc.” In Sargent of the the case of v. St. Ry. Co., 114 San Francisco Mo. 21 Louis & S. W. 823, 19 L. personal injuries R. A. which was an action for suffered judgment plaintiff’s the below plaintiff the of court in favor was to be reversed and the cause ordered remanded. But this court 360) (114 c. : Mo. l. having added “It been suggested the that plaintiff has died since this cause was submitted in this court the court) judgment (of will this be entered day as of the of submis leaving sion, parties it to the to take such proceedings in the trial proper.” quite be advised is may court It is they clear that this
649
state
whether, in the
question
court remitted to the
below the
court
in-
time,
personal
the law
plaintiff’s
at that
action for
cause of
juries
hav-
him,
during
lifetime
judgment,
his
survived
the
obtained
ing
plain-
been
which
reversed. The
in cases in
appeals
courts of
the
tiffs have
followed
died after
have
appeal
submission of the
practice
be en-
ordering
judgments
appeal
upon that
their
Stores, Inc.
Gately
tered as of
v.
the date of
submission.
Smith
(Mo.
in
injuries
App.),
(action
(2d)
personal
24 S. W.
200
for
plaintiff
which
judgment
after
recovered
and died
submission
appeal. Judgment affirmed) ;
Cement
Atlas Portland
Baker v.
which
(Mo.
injuries in
App.),
(action
Co.
PER foregoing opinion CURIAM: The C., Fitzsimmons, opinion adopted judges as the All of the court. concur. Chicago St. & Cleveland, Appellant, v. Taylor, Cincinnati, O. D. Railway (2d) 69. S. W. Corporation. Company, Louis Two, August 12, 1933.* Division Term, Opinion 1932, April 20, 1933; filed at October *N'OTE: motion filed; rehearing 1933; motion overruled June motion to transfer *15 filed; May Term, Court Banc motion overruled en at June notes and were asked. prayed. damages $10,000 also' Punitive in the sum of damages. any punitive The verdict of the allow jury did not de- Appellants by that there their admitted amended answer $18,000 livered to totaling them the mentioned promissory notas petition in said respondent amended and that interest of thereon, unpaid notes and certain renewals of balances due by appellants with the approval respondent, consent and of were held security obligations respondent for then exist- certain and debts of ing fully discharged and appellants thereafter created that and upon duties devolved them disposition in the matter of the proceeds gen- making realized in the collection of the notes. After eral all allegations petition, expressly denial of of the amended admitted, appellants up against re- in their answer set four set-offs spondent’s petition. set-off was for The first item a note amended principal May 27, by respondent $460 sum of dated executed appellant A was a to the order of Rechner. second item of set-off May promissory $2,075 for principal note sum of dated Abrahams, by respondent of John executed and another to the order alleged item set- appellant be owned Rechner. third respondent off was an appellant indebtedness from open an in the an exhibited $825.27 account sum of as shown fo- containing statement claimed was eleven items. The last set-off il,200 alleged Buchanan, fo- respondent due from appellant be rights services rendered in the sale in Kansas. of oil in certain lands Finally agreed answer respondent appellants averred that that severally jointly pay or each of the claims which the answer should sought against proceeds to set appellants off him realized $18,000 totaling on the six notes and the renewals thereof. alleged Respondent reply in his amended to the amended answer fully $460 that the note first had satisfied; been that $2,075 note purchased by the Abrahams was appellant Buchanan time, $500, Rechner; that, money appellant at the agent respondent was the and had' been by respondent instructed to seek from the holder of the note a renewal the same availing appellants, knowledge themselves given authority Buchanan, purchased note. reply denied that appellant Buchanan had rendered to services for which a set-off sought, and also denied that respondent agreed anv
Notes
notes fall case must within spirit, the as well as the letter 1929) (Sec. law 976, Mo. reference Stat. Ann. person before a right deprived by a jury. can be his trial [Browning v. North 639 224 Co., 284 W. have Ry. 439, Mo. S. We Central Missouri 748.] dispute items between the length and number in compared held parties which this with accounts in cases in court here other trial court that the improper. a reference If we should find that was refusing prejudice a its discretion to the reference exercised those overrule rights would in appellants, substantial we effect Leading doing. cases We in so other cases. do not feel warranted Tamm, 138 Mo. v. Lake Ice Co. the class mentioned are Creve Coeur Ry. Co., 284 791; Browning 385, 39 W. v. North Missouri Central S. by many cases cited 439, 224 S. 748. We examined the Mo. W. have mentioned authorities appellant and numerous other eases. The also surety upon by actions and actions appellants were mechanics’ lien them as con- involving regard long We do' not bonds, accounts. error ruled assignment is trolling Accordingly this ease. this against appellants. instruction, requested give an II. The court refused Respond (plaintiff) behalf. respondent for a directed verdict in his behalf, give his any ent did not ask the court to other instructions damages. Appellants an measure of even instruction on the jury without charge giving the to the that the trial court erred in case submitting upon which theory an instruction a fact state of argu _Appellant brief respondent entitled to recover. in his judgment a ment concedes this court heretofore has not reversed that an upon ground jury without that the cause was to the submitted outlining plaintiff’s argues case. But trend instruction he a plaintiff’s is a rule a submission without decision toward error, and that com main instruction should constitute reversible plicated application nature of instant case demands the of such contention, expressed a In we cite views rule. answer to this 1932, Supreme March, Banc Court en in the case of Luikart (2d) (Mo.), “Submitting v. 48 W. l. 870: Miller S. c. a case only jury plaintiff this an instruction for the character upon damages the measure of has been condemned sev court times; yet eral never been It it has held reversible error. be would proper require, own, for the trial or to its in court submit as an stating findings defining upon struction the issue which a plaintiff case, In verdict for would be authorized. party civil neither instructions, obliged required give is to submit and the court is not [Morgan Mulhall, v. instructions. Nondirection is not error. 4; Railroad, Mo. 114 S. W. Powell v. l. c. Mo. S. W. 628.]” foregoing peculiarly is apt case Tbe here because it was an action alleged perpetrated have been plaintiff fraud in a defendants real estate parties deal. Counsel were the case. same as the instant It true that here a went
notes
in two First notes errs outstanding 20, 1921, September January not from fairly monthly mortgage paid promptly. second were notes fell due annually mortgage prompt The third notes fell due less were ly outstanding Respondent they but to 1929. error: Second given debts, his itemized statement of his with accrued omitted from $9,487.24, payment Rechner, interest as an admitted on him May 10, 1921, $1,612, with interest to the date of the verdict September amount, $2,417.80. amounts to This last respondent’s $9,487.24, indebtedness added to stated makes a total respondent $11,905.04. appellants debt from conceded Hugh Ennis, appellants, R. an accountant as a witness called many-paged, he put evidence detailed financial statement which of Rechner from all contracts mem- up the books appellants placed oranda wdiich before him. Interest was calculated charges against 12, 1928, upon respondent December all Buchanan consisting upon all credits his favor. The credits of col- and also $21,898.12. upon the notes amounted to We will lections Rechner disregard charges they since all controverted included items. questioned. computation It would seem were not collections respondent justi- verdict in favor of at wdiieh a be the amount could the evidence as follows: fied under by appellant collections notes se Total mortgages upon Apartments, Parkviewr held cured subject his debts, trust
notes $2,760 consideration by respondent appellant Buchanan to Buckingham; it was shown that appellant, Rechner, was ad- vised of that assignment; and that it was the evidence appellants to, exercise claim neither did he Rechner, no appellant his to, except payment for the referred the notes dominion over appellant Buck- recognition assignment to indebtedness and ingham. Buckingham testified that do not so read the record. We security the de- $2,000 on the Rechner for a loan of applied to