Greer v. Parker

85 Mo. 107 | Mo. | 1884

Noeton, J.

This a suit to recover from defendant the sum of $2,340, alleged to have been paid on the fourth of October, 1881, by plaintiffs, at the request of and for the use of defendant,.to Billingsley & Nanson, a firm doing business in the city of St. Louis. The answer denies this allegation. On the trial, plaintiffs had judgment for the sum claimed, with interest, from which ■defendant has appealed.

No objections were made nor exceptions saved to the reception or rejection of evidence, nor were any exceptions saved to the action of the court in giving and refusing instructions, except to its action in refusing the .sixth instruction asked by defendant, which is as follows:

"The court instructs the jury that defendant, Parker, was not liable on the contracts of purchase read in evidence for any loss Billingsley & Nanson may have sustained thereon, unless he agreed to and with them to become liable therefor, and if the jury find that the sum of money mentioned in the petition was paid by plaintiffs to Billingsley'& Nanson to indemnify them for any loss they may have sustained by virtue of said contracts after .such loss had occurred, you will find for defendant, unless you find and believe from the evidence that defendant, Parker, requested Billingsley & Nanson to pay same or .agreed to and with them to become liable therefor.”

This instruction was properly refused, first, because it was misleading in referring to a liability arising on contracts of purchase read in evidence when the record, in point of fact, does not show that any contracts were .read in evidence; and, second, it entirely ignores the question as to whether plaintiffs paid money to Billingsley •& Nanson at defendant’s request and for his use, which was the only real matter in issue under the pleadings.

It appears from the record that the introduction of •evidence was concluded on Saturday evening, the seventeenth of February, 1883, and the cause was then, at the request of defendant’s counsel, and by consent of plaintiffs, postponed to Wednesday morning, February 21, on which day at ten o’clock the jury came, and the cause coming on to be heard on argument, S. P. Sparks, one of defendant’s attorneys, asked that the argument be postponed till the next day, because of the absence of J©hn F. Philips, his co-counsel, to whom had been intrusted the management of the case, including the drawing of instructions, argument to the jury, etc. ; that said Philips had by misadventure failed to make railroad connections and could not reach the place of trial before nine o’clock that night; that said Sparks was thus surprised, and caught unprepared either to argue the case, or then draw instructions. Plaintiffs objected to any further-postponement and proposed to submit the case without argument, which proposition defendant declined, and thereupon the court directed that the cause be proceeded with, whereupon instructions both on' behalf of plaintiffs and defendant were presented, all of which were given, except the sixth instruction asked by defendant, and hereinbefore referred to. The cause was then argued and submitted to the jury. In the motion for new trial the above facts are set out as a ground for setting aside the verdict and granting a new trial. In support of the motion, affidavits of Sparks and Philips were filed, to> the effect that Philips, to whom it had been agreed between defendant and his counsel, that the drafting Of instructions and argument of the case to the jury should, be confided, had by unavoidable accident been prevented, from being present on Wednesday, the day to which the cause had been laid over from the preceding Saturday, at request of defendant and by consent of plaintiffs, to enable said Philips to attend the Daviess county circuit court, at Gfallatin; that in consequence of such, absence Sparks was unprepared to proceed with the-cause.

Counter affidavits were filed by Mr.- Cockrell and Mr. Houts, plaintiffs’ attorneys, to the effect that defendant-was represented in the trial of the cause by Sparks, Comingo, and Philips, and that, while they were desirous-when the evidence closed that the cause should proceed regularly, they did, for the accommodation of defendant, consent to its postponement till Wednesdays that they had no knowledge of an agreement between, the counsel of defendant and defendant that the preparation of the instructions and argument of the cause was confided solely to Philips; that Sparks was the senior counsel for defendant in the case, had filed the answer, and attended at the taking of depositions, examined the witnesses, etc., and that Philips made his first appearance in the case when called for trial; that after the evidence closed, Sparks told one of plaintiffs' counsel that he had prepared instructions and given them to his co-counsel; that they proposed to defendant’s counsel to submit the case to the jury without argument which they declined, and insisted upon arguing it; that it was argued by Mr. Sparks for defendant for one hour, the same time allowed to plaintiff’s counsel; that on Wednesday, after the usual time for the trial had passed, the court, at the request of defendant’s counsel, gave them further and ample time to prepare instructions, and aftér argument by counsel for plaintiff to the jury, the court permitted defendant’s counsel to prepare and submit other and additional instructions.

' There is nothing whatever in the affidavits above alluded to tending to show that defendant, by reason of the failure of Philips to reach the place of trial on Wednesday for the purpose of presenting instructions, and arguing the case, was left before the court without an attorney fully competent to prepare instructions and argue the cause. It is true, Mr. Sparks states that Philips had been relied on by himself and his client to do these things, and that in consequence of his absence hex was taken by surprise, and was unprepared then to present instructions or argue the case, but the court gave him time to prepare instructions, and, also, further indulged him, after plaintiff’s counsel had argued the case to the jury, to prepare and present other instructions. It also appears that defendant’s counsel not only refused to submit the case to the jury without argument, as proposed by counsel for plaintiffs, but insisted upon the argument. If the facts disclosed in the affidavits had shown or tended strongly to show that by the unavoid•able accident which prevented Philips from being present, that the defendant had been left without any counsel at all, or with counsel incompetent and unfit to present his case' either to the court or jury, the case might then be controlled by the principle announced in the cases to which we have been cited, that a party has a right to be, heard by himself and counsel.

The trial judge who heard the argument, did not feel authorized, nor do we feel authorized on the facts before us without having heard it, to say that Sparks, who was the senior counsel in the case, had prepared .and filed the answer, attended the taking of depositions, thus familiarizing himself with the facts, was incompetent either to present the law of the case to the court or the facts of the case] to the jury, but, on the contrary, from the brief on file by him in this court, we are justified in drawing the inference that he was entirely competent to perform either of these duties. For reasons ¡similar to those given in the case of Jacob v. McLean, 24 Mo. 40, we are unwilling to say that the trial judge erred in overruling the motion for new trial.

Judgment afiirmed, in which all concur.