181 Mo. App. 681 | Mo. Ct. App. | 1914
Lead Opinion
This is the second appeal of this case. It was here before on the appeal of defendants from an order of the circuit court sustaining a motion for a new trial, a verdict in favor of defendants having been returned. Our court affirmed the action of the trial court. [See Campbell, Admr., v. Hayden et al., 164 Mo. App. 252, 105 S. W. 101.] In sustaining the motion for a new trial and setting aside the verdict rendered in the first trial, the circuit court assigned no grounds for its action. Two of the errors assigned in the motion for new trial were that the verdict was against the weight of the evidence, and
The learned counsel for appellant rely upon fifteen grounds for reversal. They not only claim that the judgment should be reversed but ask this court to order the trial court to enter up a judgment in favor of plaintiff as administrator for the whole amount acknowledged to have been received by respondents and for interest.
We will not undertake to pass upon these points in detail, but will endeavor to cover all of them..
Counsel for appellant cite Walker v. Bohannan, 243 Mo. 119, l. c. 137, 147 S. W. 1024, in support of their contention that the judgment must be reversed because there is no evidence that decedent and respondents, while in Montana, ever said anything to each other about the nephews taking care of the uncle and the latter having given them his property. We do not understand that the decision in Walker v. Bohannan, supra, is applicable here. There was evidence here from which the jury was warranted in drawing the inference that a mutual bargain had then and there been entered into between the parties, showing a present gift, if you please to so call it, made and accepted upon the terms proposed. The jury were furthermore warranted in drawing such an inference from the evidence of what occurred between the parties after the uncle arrived in Missouri and was at the home of one of these nephews and under the care of his nephews. Several witnesses testified that the uncle there said in their presence that he had given his property to these two nephews ; not that he intended to, or then gave it — not as in the future, or in the present, but in the past; that he had given it. There is not a word of testimony to the effect that this act of giving had taken place in Missouri. When speaking of the matter by word and sign the decedent spoke of it, not as something he was then doing, or intended to do, but as of a past, a completed, transaction. From all the testimony in the case the jury were warranted in arriving at the conclusion that the gift had, as averred in the answer of defendants, been consummated, had taken place, in Montana.
Great stress is laid upon the fact that after arriving in Missouri the decedent had executed a power, of attorney in favor of defendants, giving them full
The remainder of the assignments of error are to the giving and refusal of instructions and admission of evidence. It will serve no useful purpose to set out these points in detail. "We do not find any reversible error in the rulings on the evidence nor in the action of the court on instructions. The instructions were neither incorrect nor contradictory to instructions given at the instance of appellant. It is sufficient to say that on careful consideration of all those given, in connection with the pleadings and evidence in the case, we find no reversible error in the action of the court in giving them, nor in refusing certain instructions asked by the appellant.
The judgment of the circuit court is affirmed.
Rehearing
A lengthy and somewhat acrimonious motion for rehearing, and an argument or “suggestion,” as it is called, in support of the motion has been interposed by the learned counsel for appellant. Those counsel attack the opinion rendered as not supported by the record on the facts. We used general language in stating the facts and have modified the opinion to make that clear. Our opinion rendered when the case was here on the former appeal, is attacked as “bad law.” We see no reason to change or modify that opinion. It is the law of the case, as we understand it.
The main point now urged is that our present opinion is in conflict with several decisions of our Supreme Court, notably Forrister v. Sullivan, 231 Mo. 345, 132 S. W. 722; Walker v. Bohannan, 243 Mo. 119, 147 S. W. 1024; Hersman v. Hersman, 253 Mo. 175, 161 S. W. 800. These cases have no relation whatever on their facts, on the issues, or on the law, to the case at bar. They are cases- seeking specific performance of oral contracts for conveyances of lands; cases in which it was attempted to remove the contracts from the condemnation of the Statute of Frauds. In such cases, that is, where a decree is sought to compel specific performance of an oral contract to convey land, to 'authorize a decree the proof necessary to remove the bar of the Statute of Frauds must be so clear and convincing as to leave no reasonable doubt of its existence and terms. But the case at bar is not of this class. It falls'under the rule announced in Fitzpatrick v. Dooley, 112 Mo. App. 165, 86 S. W. 719, Cole v. Fitzgerald, 132 Mo. App. 17, 111 S. W. 628; Kingston v. Roberts, 175 Mo. App. 69, 157 S. W. 1042, and Bowman v Shelton, 175 Mo. App. 696, 158 S. W. 404. In all these cases the object of the action was to recover from an estate money said to be due by reason of contracts with the
In Fitzpatrick v. Dooley, supra, it is said (l. c. 172 and 173): “In some jurisdictions nothing less than proof of an express agreement will be accepted as the basis of a judgment for compensation. But in this State the agreement may be deduced from circumstances. (Citing cases). Though there must be an actual agreement, established either directly or inferentially, it is not essential that it should have been put-into words; but it is essential that there should have occurred what the name implies, namely, a meeting of the minds of the parties on the subject of compensation — a common understanding about it. ’ ’
Here there was evidence of that meeting of the minds of the parties on which the jury was warranted in arriving at its verdict. We find no ground to overturn that verdict or the judgment rendered. We have made some slight verbal modifications in the opinion. So modifying it, and adding to it the foregoing, the motion for a rehearing is overruled.