52 Mo. App. 177 | Mo. Ct. App. | 1892
This action was originally commenced before a justice of the peace upon the following statement of account: “1891. J. J. Hopson to H. P. Hart. To money due for services rendered, time and attention given, in making an examination and giving opinion as an expert, and in bringing about an agreement between him and Philip Braun, concerning the purchase of certain property on the northeast corner of Franklin avenue and Seventeenth streets, in the city of St. Louis, Missouri, $200.” A trial before a jury in the circuit court resulted in a verdict and judgment in favor of the plaintiff for the sum claimed, with interest; from which the defendant prosecutes this appeal.
There was no defensive pleading, nor did counsel for the defendant make any oral statement of his defense; but in his statement filed in this court his defenses, which we shall assume to be the defenses which he attempted to develop in his evidence and by
“First. That plaintiff [Hart] did not perform any of the alleged services set forth in the statement for defendant, and that whatever plaintiff did in the matter, he did for the Hopson Dairy Company, and Philip Braun, in whose names the agreement referred to in the cause of action was made; that defendant was treasurer of said company at and before the time said agreement was made, and acted as its agent in his dealings with Hart in reference to said agreement, as well as in all matters set out in his cause of action.
"Second. That misrepresentation and concealment of facts and fraud were practiced by the plaintiff Hart in bringing about an agreement for the purchase of the-property described in the cause of action, and in reference to the services sued for, by means of which representation and fraud $200 was paid on the purchase price and agreement of purchase of said property to-Philip Braun, when, in fact, the interest of said Braun in said property was worthless and of no value; that said property was incumbered' for $6,000, when plaintiff represented to defendant that it was incumbered for $3,000; and plaintiff represented to defendant that the title to said property could be gotten and possession of the same could be obtained at any time, when, in fact, possession of said property could not be delivered by said Braun at all, or a good title given by him, he not being in possession of said property himself, having by a five years’ lease and other conveyances and acts- parted with the possession of said property and all control over the same, so that he even did not have the right to control or rent said property, or to collect or receive the rent coming therefrom.
“Third. That the plaintiff Hart, and one Daniel Prince, and said Philip Braun, the party named in*183 plaintiff’s cause of action, or said Hart and Prince, did conspire and collude together for the purpose of perpetrating a fraud in the sale of the property described in the statement, and in bringing about the agreement for the purchase of the interest of said Braun in said property; that, by reason of said conspiracy, said agreement was brought about, and $200 paid on the same to said Braun upon the purchase price of said property for his leasehold interest therein, which was of no value and worthless, it being incumbered for about $6,000, when said Hart and Braun told defendant it was incumbered for $3,000, and said Braun could not give a title to or deliver possession of said property, as he and said Hart had represented to defendant that Braun could do, said Braun not being in possession of said property himself, nor had he either the right to possession or the right to control or rent the same, or to collect or receive the rent therefor.”
The plaintiff gave evidence at the trial tending to show the rendition of the services by him at the request of the defendant, as alleged in his statement, resulting in bringing about a contract between the Hopson Dairy Company, of which the defendant was the treasurer and one of the managers, and one Braun, the owner of a leasehold upon the property mentioned in the plaintiff’s statement, for the sale of the leasehold by Braun to the dairy company. The agreement was in writing, and was as follows:
“St. Louis, Mo., September 21, 1891.
“Deceived of Hopson Dairy Company $200, in part payment of a certain leasehold of improved property, being situated on the northeast corner of Seventeenth street and Franklin avenue, city of St. Louis, and state of Missouri, which leasehold is this day sold to them for the total sum of $4,800, payable on terms of $1,000 in cash and the remainder of $800 ninety*184 days after date, with, interest at six per cent, per annum, payable also in ninety days after date. Said deferred payment to be secured by a deed of trust, and assume a deed of trust of $3,000 already on said property. It is agreed by and between the undersigned that the title to said property is perfect, and .will be conveyed free from liens and incumbrances, except as to taxes to date. The said Hopson Dairy Company is to have twenty' days’ time in which to have the title investigated. The said Hopson Dairy Company is given until the first day of November, 1891, to mate the first payment on said leasehold, and, when the first payment is made, the said Hopson Dairy Company shall take possession of said leasehold. Now, if said Hopson Dairy Company fails to make the first payment on or before November 1, 1891, the sale shall be off and the money forfeited. If, upon examination, the title proves to be defective and cannot be made good within a reasonable time, the sale shall be off and the earnest money returned. And Mr. Philip Braun agrees to have the corner of Franklin avenue and Seventeenth street vacated in ninety days from time the said Hopson Dairy Company takes possession. We agree to above.
“(Signed)- Ph.'.Beaun, [Seal]
“Hopson Daiey Co.] [Seal]
“By J. J. Hopson, Tres. [Seal]”
I. The first error assigned is the refusal of the trial court to admit in evidence the statements óf a mulatto man named Prince, supposed to have been made to the defendant. The effort was to elicit evidence of the statements on the examination of the defendant by his own counsel. It appeared that, after the defendant employed the plaintiff to see if he could procure a purchase of the particular property, the plaintiff met Prince casually and asked him if he knew
“Q. Did you receive a letter from Mr. Prince about the price that was to be paid for this Seventeenth
“Q. When was it? A. Just about the time or a little before we paid the earnest money on the property.
“Q. What was the purport of that letter? A. Well, I did not read the letter; he just said that the letter was from his boss to Mr. Braun, making an offer on the property of $6,000, and, if we wanted to buy the property for $4,800 — (Counsel for plaintiff objects, as it was the same matter as that ruled against in the last question.)
“The court: • I think the objection is well taken. The statements of Mr. Prince are not admissible, until you show that Mr. Prince is in some way connected with Mr. Hart, or that a conspiracy actually existed to make the declarations admissible as the declarations of a conspirator. (Defendant then and there duly excepted to the ruling of the court.)
“Q. State what Prince said in regard to putting up this $200. (Counsel for plaintiff objects. The court sustains the objection, to which ruling the defendant then and there duly excepted.)
“The court: I do not mean to say that this evidence may not be admissible; but, until you lay a foundation for those declarations, they are not. (To which ruling of the court defendant duly excepted at the time.)”
There were further similar questions and similar rulings. These rulings were correct. No substantial evidence had been given tending to show, what is now claimed in support of this assignment of error, that a conspiracy had been concocted between the plaintiff and Prince to get the defendant, or the dairy company of which he was treasurer, to purchase a worthless leasehold belonging to Braun. It is argued in
II. The next assignment of error is that the court should have given the instructions asked by defendant at the close of the plaintiff’s ease, renewed at the close of the entire case, to the effect that the plaintiff was not entitled to recover under the evidence. The argument adduced in support of this assignment is that no evidence had been adduced showing that an agreement, had been brought about by the plaintiff between the defendant and Philip Braun, as alleged in the plaintiff’s cause of action; so that (such is the argument) if the plaintiff is entitled to recover at all, it is upon a quantum meruit for services, and not upon the express agreement. The plaintiff’s evidence tended to show that the defendant Hopson employed him to bring about the purchase of this property, and agreed to give him $200 as his compensation if he succeeded. He also instructed the plaintiff to proceed as though desiring to purchase it in his own name, the defendant
III. The next assignment of error complains of' the following two instructions j the first given at the request of the plaintiff, and the second given by the court of its own motion: “The court instructs the jury that, if they believe from the evidence that the defendant agreed with plaintiff to give him $200 if plaintiff' would examine certain, buildings and make a report thereon to defendant, and would procure Braun’s consent to the transfer of the leasehold interest mentioned in the evidence for a consideration of $1,800, and that plaintiff did so examine, and did so make a report to' defendant, and did so procure Braun’s consent, and that Braun and Hopson entered into an agreement for such transfer, your verdict should be for the plaintiff, although you may further find that no transfer of the lease was made, unless you believe from the evidence’ that, in making such contract, the defendant Hopson acted for and in behalf of the Hopson Dairy Company,, and that plaintiff knew such to be the fact.”
“Unless you believe from the evidence that the defendant agreed with plaintiff to give him $200, if plaintiff would examine certain buildings on the property mentioned by witnesses, as the subject of' negotiations between the plaintiff and defendant, and make a report thereon to defendant, and would procure Braun’s consent to the transfer of the leasehold interest mentioned in the evidence for a consideration of $1,800, and that, in pursuance of such agreement, the plaintiff did so examine said buildings, and did so make a report to defendant, and did so procure Braun’s consent, and
The argument in support of this assignment of error is, that these instructions are not based on the pleadings or issues in the case; that they proceed in disregard of the pleadings, and place the plaintiff’s right to recover on the evidence alone, and direct the jury that, if the plaintiff procured Braun’s consent to the transfer of the leasehold, and if Braun and Hopson entered into the agreement, the plaintiff should recover. We find ourselves unable to gather the force of the objections to these instructions. It is argued that the plaintiff’s suit is for services rendered by him in bringing about, and consummating, a complete and entire agreement between defendant and Braun for the purchase of the property. Recurring to the plaintiff’s statement of his cause of action, we find that it is drawn without much particularity of statement, as is admissible in statements in actions before justices of the peace. It is simply an account “for money due for services rendered, time and attention given, in making an examination and giving opinion as an expert, and in bringing about an agreement between him [defendant] and Philip Braun, concerning the purchase of certain property,” describing it. It appeared in the evidence that “the property” of Braun consisted of a leasehold upon the described property, and that this leasehold was the subject of the negotiations and of, the contract which has been already quoted. These instructions were, therefore, carefully applicable to the evidence under the plaintiff’s statement, and there seems to be no tenable ground for concluding that they are open to the vice of singling out certain facts, not in themselves controlling, and directing a verdict regardless of other facts at issue. These instructions do not, as is argued, restrict the issue, but proceed upon the evidence
IY. The next assignment of error is predicated upon the giving by the court, at the request of the plaintiff, of the following instruction: “The court instructs the jury that there is no evidence before them of any fraud, collusion or conspiracy on the part of the plaintiff with other persons, and that defense, therefore, is not made out.” This instruction was manifestly drawn with the idea of meeting that part of the defense, which endeavored to exonerate the defendant from keeping his agreement with the plaintiff, on the ground that the plaintiff had conspired with the colored man, Prince, to misrepresent the condition of the title of the property to the defendant, and to impose upon him (or upon the dairy company) a worthless leasehold of a party, who did not have possession himself and who did not have the power of putting the purchaser in possession. It would serve no useful purpose to attempt to go into an analysis of the evidence for the purpose of disposing of this assignment of error. It is sufficient for us to say that we have carefully examined the evidence, and that we agree with the circuit judge that there was no evidence of such a fraud, collusion or conspiracy, between the plaintiff and any other person as that described in the instruction.
Y. The next assignment pf error is predicated upon the giving by the court of its own motion of the following cautionary instruction: “You are instructed that the jury are the sole judges of the credibility of the several witnesses that have appeared before you, and of the weight or importance to be given
We are quite unable to gather the force of the objection to this instruction. It is said that it should have been confined to false swearing to material facts in evidence. It is true that the usual frame of language, in which such instructions are given in this state, directs the jury that, if they believe that any witness has wilfully sworn falsely to any material fact in issue, they are at liberty to disregard his testimony entirely. But this customary frame of language leaves the jury without any' specific direction by which to-decide what are material facts in issue; whereas the' instruction, as drawn by the court in this case, directs them to the hypothetical facts stated in the instructions. In this regard the instruction seems to be more carefully drawn, and hence better, th'anfhe instruction which is usually given under this head. This instruction was given by the court of its own motion, in modification of a similar instruction tendered by the plaintiff. It is said to have been intended by the counsel for the plaintiff to direct the attention of the jury to the evidence of the defendant himself, which to some extent had been indirectly impeached by evidence that, at the trial before the justice of the peace, he had admitted the-plaintiff’s claim and had stood solely upon the defense, that the contract was not his personal contract but was the contract of the dairy company of which -he was treasurer. On the whole, we see no error in giving this-instruction, and we overrule this assignment of error.
Oiir conclusion is that the judgment of the circuit court must be affirmed. It is so ordered.