20 Mo. App. 606 | Mo. Ct. App. | 1886
Lead Opinion
delivered the opinion of the court.
The first count in the petition charges that the plaintiffs, doing business as partners, on January 27, 1882, at the special instance and request of the defendant, bought for him 10,000 bushels of wheat, to be delivered in March following, at the price of $14,493.75, and that on February 10, they sold the same for the defendant at a loss of $1,468.75, of which the defendant has paid them $1,427.25. That the balance of said loss, with the plaintiff’s commissions of twenty-five dollars, amounting in all to $66.50, remains unpaid, for which they ask judgment. The second count sets up a like purchase and sale of 10,000 bushels of wheat, involving a loss of six hundred and fifty dollars, for which sum, with twenty-five dollars for
The defendant claimed that, as to the first transaction, there was a balance due from him, when the plaintiffs proposed that if he would pay them five hundred and fifty dollars, it would be accepted as a settlement in full; that he paid the amount, and they gave him a full receipt and discharge. As to the second deal, the defendant denied that he had ever requested or authorized it. The testimony given by the parties respectively on these two points was flatly contradictory. The instructions fairly submitted the issues thus raised, and as to them, the finding of the jury leaves nothing for our review.
Upon a careful examination of the bill of exceptions, we fail to find a particle of testimony on either side, tending to show that the transactions between the parties were mere wagerings or speculations upon a fluctuating market, without any actual purchase, sale, or delivery of a mercantile commodity. The parties and witnesses testified about nothing whatever hut the “buying” and “selling” of wheat. Not a word is said by anybody about any agreement, pretense, or understanding on either side, or anything short of actual purchases and sales. Purchase and sale, duly consummated, include delivery, by implication. There is no warrant in this record of testimony for assuming anything less.
In Williams v. Tiedemann (6 Mo. App. 269), this court said: “The law will not presume against the validity of a contract relating to a proper subject matter. The burden of proof is upon him who alleges its invalidity.”
The circuit court gave, nevertheless, of its own motion, the following instruction:
“If the-jury believe from the evidence that the plaintiffs and defendant either agreed, or mutually understood, at the time of the transactions in evidence, or either, that the same were to be conducted as mere*609 wagers on the price of wheat, or that no wheat should or would be actually delivered on such alleged agreement for the purchase of wheat, but that there should be a settlement of differences in price, then any such transaction would be illegal, and no recovery could be had herein on account thereof.”
This was, of course, erroneous. It enabled the jury to base their verdict on a mere guess, where there was no evidence before them. It does not help the matter that the plaintiffs asked for an instruction, which was refused, to the effect that the wagering must have been intended by both parties, in order to vitiate the contract. This was, at most, but an indirect admission that there was some evidence on that point. But the court had no authority to act upon such an indirect admission, when the contrary fact was plainly before it. If the instruction given had been justified by the evidence, the plaintiffs would have been entitled to the one they asked for, since it contained a proper qualification which was omitted from the one given. Williams v. Tiedemann, supra. Thus the error was duplicated by the refusal.
The court gave the following instruction for the defendant :
“If the jury believe from the evidence that the plaintiff, Cummiskey, promised the defendant that he, or they, meaning the plaintiffs, would take a deal for the purpose of recovering to defendant the amount of money lost by him, and that they, or either of them, did take such a deal, then the defendant is not liable for any margins or losses arising therefrom, and the jury, if they so find, should return a finding for the defendant on the second count herein.”
The only evidence on which this instruction was founded, appears in the following statements of the witnesses : “ Commiskey said he would take a deal for me, the defendant, and try and make my money back. Mr. Cummiskey wrote me a letter, saying he had made a deal for me and had lost some money. ” “ Cummiskey told Williams that he would taiie a deal for him and try
The judgment must be reversed, and the cause remanded.
Rehearing
ON MOTION POR RE-HEARING.
delivered the opinion of the court.
In our former opinion in this cause, we said that we found no testimony in the record tending to prove that the transactions between the parties were mere wagering contracts, and that in the absence of such testimony, the presumption must be of the contrary. The respondent now says, in amotion for re-hearing, that this was a mistaken understanding of the record, and quotes in support of his position the following statements in the bill of exceptions : “ The plaintiffs, to sustain the issues upon their part, offered evidence tending to prove the facts stated in their petition. * * * The defendant, to sustain the issues upon his part, offered evidence tending to support the answer herein.”
Prom this it would appear that there is somewhere in the pleadings an allegation of wagering contracts. The petition, of course, makes no such allegation. The answer is only a general denial. Unless, therefore, it was admissible under the general issue, to prove up the special defence that the contracts were wagering
Our statute provides that: “ The answer of the defendant shall contain: First, a general or specific denial of each material allegation of the petition controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. Second, a statement ■of any new matter constituting a defence or counter-claim, in ordinary and concise language, without repetition.” Rev. Stat., sect. 3521.
This provision is a literal copy of what appears in the same connection in the codes of nearly all the states where the reformed practice prevails, and is substantially the same as in those where it is not literally so. In every one of the states where the question has arisen, it is held necessary that a defendant, admitting the fact of a contract or agreement, but controverting its legality, must set this up as a special defence of new matter, and will not be allowed to prove it under a general denial of the allegations of the petition. Goss v. Austin, 11 Allen (Mass.) 525; Granger v. Ilsley, 2 Gray 521; Denton v. Logan, 3 Metc. (Ky.) 434; Smith v. Owens, 21 Cal. 11; see, also, Campbell v. Hyde, 1 D. Chip. (Vt.) 65; Newell v. Hayden, 8 Iowa 140 ; Hagan v. Burch, Id. 309.
A doubt may possibly intervene as to the application of the same doctrine in Missouri, on account of two decisions of our supreme court. In Greenway v. James (34 Mo. 326), it was declared in general terms that: “Where a cause of action which once existed has been determined by some matter which subsequently transpired, such new matter must, to comply with the statute, be specially pleaded.; but where. the cause of action alleged never existed, the appropriate defence under the law is a denial of the material allegations of the petition; and such facts as tend to disprove the controverted allegations, are pertinent to the issue.” In
Thus, in Sybert v. Jones (19 Mo. 86), the defence was, that the contract was founded on an election bet, and, therefore, not enforceable by law. Our supreme court required, not only that the defence should be specially pleaded, but that the answer should describe the particular election, and should show by sufficient averments that it was one held under the law.
In Sugg v. Blow (17 Mo. 359), it was held that if there was fraud in the making of a contract, (and this, of course, would show that a right of action never existed,) the defence must be specially set up in the answer. We-have not been able to find a Missouri case in which the dictum in Greenway v. James was applied to an action upon contract. We mean no disrespect in the use of the term dictum, which would have no proper application if we were considering an action of replevin. As already shown, the authorities elsewhere are unanimous against the introduction, under a general denial, of evidence to-prove illegality in the contract sued on, as a defeme against it. This being the state of the law, it would be-a violent assumption on the part of this court to conclude
As to the other grounds urged -for a re-hearing, we find nothing that is not sufficiently met in the opinion heretofore delivered. That errors were committed in the appellant’s favor, furnishes no reason for affirming a judgment against fatal errors committed to his prejudice.
A re-hearing is denied,
