111 Mo. App. 342 | Mo. Ct. App. | 1905
(after stating the facts). — In rebuttal of defendants evidence and to corroborate plaintiff, plaintiff put a witness on the stand to prove his good character. The witness, after stating that he knew the general reputation of the plaintiff in the community in AA'hich he lived, was asked to state what his reputation was. The ansAver is: “He is a quiet, hard working boy, honest so far as I knoAV.” The defendants had not attacked the general reputation of plaintiff for honesty, morality or virtue or for truth and veracity. However, it was alleged in the defendants’ ansAver, in substance, that plaintiff fraudulently converted a thousand dollars in money belonging to the firm of Gordon & Bloom to his OAvn use, and Bloom’s testimony tends to support this allegation. On this allegation plaintiff insists that evidence of his good character Avas admissible. In respect to this character of evidence, the rule in civil actions is that, unless the character of the party is put in
In Dudley v. McCluer, 65 Mo. 241, it was ruled: “The fact that defendant is charged in the petition with fraudulent dealing, furnishes no ground for the introduction of evidence to prove his good character.”
The case of Stark v. Publishing Co., 160 Mo. 529, 61 S. W. 669, was a suit for libel in which the plaintiff alleged the defendant published of and concerning him a libel charging that plaintiff represented a corrupt combination of members of the public school board of the city of St. Louis before the General Assembly, in respect to certain school bill then pending before said General Assembly. In respect to character evidence, the court, quoting from Dudley v. McCluer, supra, at page 550, said:
“ Tutting character in issue is a technical expression, which does not mean simply that the character may be affected, but that it is of particular importance in the suit itself as the character of plaintiff in an action of slander, or that of a woman in a suit for seduction.’ (Porter v. Seiler, 23 Pa. St. 424.) In those excepted cases, character affects the amount of the recovery. The jury are, by law, permitted to consider it in assessing damages, and it is in that sense that it is said that ‘the nature of the action puts the character in issue.’
“The rule to be deduced from the weight of authority, and recognized in this State, seems to be, that while proof of plaintff’s good character is not admissible in the first instance as evidence tending to’ prove that he Avas not guilty of the matters with which he is charged in the publication, it is so admissible as bearing upon the question of damages to be assessed therefor in the event that the jury should SO' find. As that question was never reached by the jury in this case, conceding that*352 there was error in refusing this evidence it is not reversible error.”
In Lumber Co. v. Hartman, 45 Mo. App. 647, the suit was by attachment. The affidavit for the attachment charged the felonious embezzlement of plaintiffs money by defendant. On a tidal of the plea in abatement it was held that evidence of defendant’s good character was not admissible for the reason that he was charged with embezzlement by the affidavit for the attachment.
In Grocer Co. v. Tagart, 78 Mo. App. 166, it is said: “Before a party to a suit can introduce evidence of his good character, his character must he attacked as a witness ; and if such an attack arises as an incident out of the issues of the case, it affords no ground for corroboration of the party by testimony of his good character for truth and veracity.”
The only class of civil cases where character is made an issue by the pleadings are those cases in which the value of character is proper to be considered in estimating the damages as in libel, slander, malicious prosecution, etc. Vawter v. Hultz, supra. No issue of this kind was made by the pleadings in the case at bar and for this reason the admission of evidence to prove plaintiff’s good character was erroneous.
The second instruction for plaintiff, of which defendants complain, is correct as an abstract proposition of law. The seventh instruction asked by defendant and refused by the court, we think, should have been given. Gordon’s partnership agreement with Bloom was not void but voidable only at his election, and he may set up Ms incapacity to release himself from liability for the purchase-price of the firm’s assets. Bank v. Strauss, 137 N. Y. 148; Pelletier v. Couture, 148 Mass.. 269. But plaintiff will not be permitted to derive an undue advantage from his disability. He cannot, at the same time, set up his disability, to relieve himself of the firm’s debts and retain possession of the
The judgment is reversed and the cause remanded.