*1 Floyd A. Hattrem et of the Estate of al., E. Administrator Jacobs, Danciger (2d) 588. Appellants. S. W. A. al., et Two, July
Division 1939.* Term, 1938, April September 20, 1938; Opinion at filed motion *NOTE: filed; May rehearing motion en Banc overruled transfer Court at 1939, July 7, Term, 1939. *2 Ringolsky, Boatright appellants. & Jacobs
Johnson, Quinn respondents. <& Garnett
1045 damages COOLEY, against for for C. Action vendors vendees plaintiffs $9624, for judgment breach of contract. Verdict and appealed. from which defendants 23, 1920, April Danciger, representing defendants, partners,
On A. City, Missouri, of Kansas A. entered into a written contract with Hattrem, Salem, Oregon, representing plaintiffs, partners, of where- defendants, agreed plaintiffs would sell and buy City, hops, bales of to be delivered f. o. b. cars at Kansas Missouri, October, 50 bales bales bales November and December, hops price 1920. Thereafter the market declined. 24th, September 1920, plaintiffs 23rd and defendants notified On accept hops shipped comply not and would therefore, shipped. Plaintiffs hops, contract. The mar- price sued to recover the difference between the contract and the hops ket at the time of breach of the contract. Defend- value ants, by answer, alleged their that the contract was void because in law, violation of in that knew defendants intended to use and hops packages packages,” “home sell certain called brew containing appliances making materials and home brew beer hav- alcohol, ing per contrary more than one-half of one cent of to Section Act, C., Title National Prohibition U. Title Section 30 S. A., 30), knowledge (27 agreed sec. and with such and con- U. C. illegal use of the defendants
sented to such intended purpose them in their to violate the law. aided and abetted At The ease has in this court twice before. the first trial been *4 judgment, appeal was plaintiffs recovered which on revered this (Div. One), Danciger al., in et Jacobs et al. v. Mo. court in, followed, trial (2d) 41 W. 389. Another which the verdict was S. again judg- plaintiffs’ appeal we reversed the
for defendants. On Danciger (Div. the cause. et al. v. et al. ment and remanded [Jacobs Both reversals Two), 339 Mo. were be- 1193.] in instructions. Such further statement of facts of errors cause necessary may will be made in the of as be deemed course this connection, also, refer the opin- In this we reader to our opinion. appeals for more the former detailed statement facts.
ions on 5, given plain- I. Defendants contend Instruction No. prejudicially erroneous. It reads: tiffs was ‘‘ .knowledge alone, jury are instructed that mere without as- participation thereto or therein on the of the sellers at the sent entering commodity a for the a of into- contract sale of time commodity ingredient to use such as an in purchasers intended their 10.46i
a:mixture, law,-would)not. the sale of a violation of. which would.be agree- or .such.-contract;- in.-itself.-invalidate there must-be act some consent, unlawful, ment or of .pur- the sellers -in furtherance such pose.' “If that, find- at you- the. the. time- and.-.believe-.from the, of-:entering into the suit,- in the knew de-. contract fendants intended to' use and sale said in manufacture such, packages law, notwithstanding/ knowledge, but violation dp or, any, nothing if agreed nothing did be which would fur-. you purpose, violation, of such nor will consent to such
theranee .dis- regard a the defense the contract evidence was .in law.’,’ , , violation of the . . are, first, The complaints instructions that it of. directed said disregard illegality the defense of the contract unless defendants,, plaintiffs.were pariioeps oriminis a violation law singled upon second, improperly out and commented cer- plaintiffs’ knowledge in. tain evidence its of defendants’ reference illegal hops. use of the intended given previous Said instruction- both the trials challenged by-defendants ap,-, the first referred. on we . approval of this peal apparently met the court. Defendants that, however, objections specific did then say,
now raise upon pass and that therefore did not those above indicated the court that, being even if instruction, and further phases of previously, upon ruled re-examine a contention made and asked to duty power correct our own errors we have the —to —and citing appeal; Mangold Bacon, the first that we erred on convinced 650, and other that case 496, 141 S. W. cases. the. general legal 512) rule to “that conclu- (237 l. c. stated Mo. general on appeal, on law or announced whether sions first only facts, duty prescribe applied law the concrete con-, trial court to strict obedience and power-of limit formity thereto, remain the law of case in but become and subsequent appeal.” The court steps below above all after or rule, noted also that there are well the reasons stated cases, recognized thereto, citing' illustrative exceptions summed considered, premises “The the sum the thus: up the discussion grace right cogent and from or when con- this: Whether matter is harmony with other as lack of decisions vincing appear, such reasons hardship change, flow injustice or where no incorrectly of law have been de- principles inadvertence where made, injustice time, has been or mistake fact first clared adhering opinion, first done to the rights parties by. *5 be. havp duty it play, is our to the rule re- exceptions then second in the appeal errors on the our own same and correct examine ease.”
1047. 460.) p.Mo. (see appeal in their On the brief first defendants buying, argued “Knowledge by purchaser is that seller intoxicating making for the..purpose haying hops used that, part on his liquor necessarily imputes seller an intent to the , knowledge part of seller on the would shall be so used. Such Therefore it was guilty make offense. the seller the substantive knowledge sufficient make that mere not be error instruct convincing ap- “cogent reasons illegal.” the contract Whether assuming it to have re-examining contention, pear” for may against appeal, well be doubted. been ruled them on the first to rule the unnecessary question But deem it to determine justly ground. the instruction sub- point on that We do not consider appeal de- against the first ject leveled it. On to the criticisms now knowledge part sale, mere fendants contended by hops, defendants of the was plaintiffs of the intended use Act, supra; also Title National Prohibition violation of Section “Knowledge evidence from which alone is that under said statute hops for use in man- may plaintiffs intended the find that ufacturing intoxicating Mo. l. c. liquor.” [328
l. c. Section 18 reads: Said 391.] manufacture, advertise, possess sell or “It shall be unlawful utensil, contrivance, machine, preparation, compound, any for sale designed recipe advertised, substance, formula, direction, or tablet, intoxicating for use the unlawful manufacture or intended ’’ liquor. supra):
Referring (l. court said c. to that statute the knowledge expressly provided “It mere is statute by purchaser by the of the intended use of substance seller Congress intended, had so of law. It seems is a violation knowingly sell provided it shall be unlawful so, by use. It did not purchaser such do substance intended making as the test of the seller in the sale fixed the intention think the ‘intended’ legality. For this reason we word was knowledge. It means more than mere knowl- in the sense of mere used knowledge on edge. accompanied It means of the seller some act use; encouragement indicating to or part consent such We his ’’ general rule, (quoting encouraged in this view the which follows: citing J., L., 134, pp. 1317-19, p. also 13 R. sec. C. from 23 C. Bacon, 474, 476, quoting the latter 517, and Michael case). denied, as were further contention that
Both contentions knowledge of the intended use defendants of the mere guilty conspiracy tending to show that of a National Prohibition Act. to violate holdings appeal we reaffirmed those as to the second effect
theOn knowledge buyer’s of the seller intended mere *6 1CÍ48
illegal the hops. contend, use of the that on true, It is as defendants appeal second not neces- we said that under the Federal statute was sary that the to the act pjariiceps seller become a criminis unlawful buyer agree of the But do not order that the sale be unlawful. ques- instruction in further contention that the illegality jury disregard tion the of unless directed to the defense by plaintiffs of law defend- particeps had been criminis to a violation language disjunctive. in the “There ants. The of instruction is the agreement plain- if etc., must be some act or or the consent” tiffs, though having knowledge of defendants’ intended of the use nothing agreed nothing . . nor to hops “did or to do . consent illegality such violation” the defense of of the contract should be dis- regarded. appeals "Wesaid on both former that the “in- the word knowledge. tended” as used in statute means more than mere “ knowledge seller, It means of the some act on accompanied his part indicating to, encouragement in, consent such use.” There jury was evidence on defendants’ behalf from which the could find agreement plaintiffs’ part indicating consent; act or also some plaintiffs’ side from which could be found absence of agreement such act and absence of consent. So it not im- proper But, include all those elements in instruction. as worded, disregard jury instruction did not direct the the de- illegality they plaintiffs any- fense of thing unless found that neither did agreed anything nor to do be in of which would furtherance purpose, unlawful nor to such violation. consented Under that they jury, it, presumed if as instruction followed are to have against done, plaintiffs ground could found on the illegality only of the plaintiffs found consented and noth- ing more.
Neither
on,
do we consider said instruction a
or a singling
comment
emphasis of,
out
knowledge,
the fact of
undue
those terms
and should be understood
cases in which comment on the
evidence in
merely
instructions has been condemned.
court
The
telling
jury
legal
knowledge
effect
part
hops.
Tyler
Hall,
defendants’ intended use
106 Mo.
319,W.
question
17 S.
there was a vital
whether or not a cer-
by Sylvester
purporting
convey
tain deed made
Hall
land to his
George
George.
son
had been delivered to
The trial court instructed
“Sylvester
jury
although
during
Hall
kept
his
lifetime
place
George
yet
access,
fact,
deed in a
to which
L. Hall had
itself,
delivery.
was not sufficient
The
constitute
intention to
proven
must be
some
grantor.”
deliver
word or act of the
This
said,
l.
court
c.
In (Mo.), 667, 671, Ward v. Fessler 252 S. we said: “It is W. always legal proper jury is the effect the court to tell what proof. cases.) proper court, of in It not for the in (Citing facts is instruction, give prominence parts an undue to certain jury pass finding That upon which the must in the facts. evidence, upon is a comment but that is different from .tell- ing jury proof.” of in legal what is effect certain facts Tyler Hall, supra, frequently has been cited and followed. v. 648, Jones, 631, (2d) the recent case of Stanton v. 332 Mo. 59 S. W. Fessler, supra, approval this court Ward v. and distin- .cited guished City Kansas, 483, 550, Barr v. of 105 16 S. W. cited Mo. by appellants applying prin- illustrative here. For other eases Tyler Hall, following: Gray ciple announced in v. see the v. Doe Co., 481, 877, (14); v. (2d) Run Lead 53 S. W. 883 Offutt Battagala (2d) 202, (4-5); v. (Mo. App.), W. Acker S. (Mo.), 100; Schrowang Von Koopman (2d) Hoffman (Mo. App.), Press 75 S. W. 649. jury, court,
In the instant case without direction from the legal knowledge might have misunderstood effect of mere alone plaintiffs hops, intended use of the might given knowledge haA^e such mere an effect which should not out, pointed be attributed to it. As we have defendants’ counsel them selAres, legal appeal, on the first misconstrued the effect of such mere urged knowledge and for it an this court said it effect which does plaintiffs’ If “mere learned counsel could thus misconstrue have. knowledge,” unlikely jury laymen, it is not without di court, might misapprehension. a similar have had rection instruction, clarifying purpose served a useful the issues for jury. challenge 1, plaintiffs’ because, also Instruction No. Appellants finding plaintiffs particeps say, required it too criminis illegality make the available. The instruction defense order necessary quote hypothesizes it. It the facts long and we shall is ver to authorize a verdict and directs such to be found finding facts, of such unless it is further found that at upon dict Hattrem time of the sale knew defendants’ intended use of the agreed hops purpose, to sell said furtherance of such hops “and (Italics ours.) in other instructions.” does not at as defined agreeing would constitute purport to define what to sell tempt instructions,’-’— purpose, points to “other of such furtherance together, not one bnt all of them —for such definition. Read sufficiently be, clearly enough think should instructions and we necessary submitted to the the facts to be found in order to justify plaintiffs. a verdict for Appellants
II. assign telegrams, error in the admission certain portions thereof, as indicated infra. 23, September On plaintiffs,- defendants wired discontinuing our malt business and will be unable to “.We you use the order for us take to relieve wire what will us of same.”
September 24, 1920, defendants, plaintiffs wired “Answering your telegram twenty prefer ship according third we subject your contract however telegraphic acceptance immediate will your paying cancel contract consideration us at this time in cash nine twenty thousand six hundred and dollars which is the four price.” between market value and contract difference September plaintiffs, defendants wired telegram twenty “Your fourth received we statement re-affirm *8 telegram yesterday any your our and will not receive pay any damages you will demanded as far as we con- aré cerned the is contract terminated.”
September 24, 1920, plaintiffs defendants, wired “Answering your telegram beg this date to that we will not state your hop twenty cancel April contract with us as dated third nine- twenty only teen your paying consideration us at this time twenty cash nine thousand six hundred and dollars and this four offer subject your telepraphic is made acceptance immediate otherwise you your will hold liable for fulfilment of contract on in all of its terms.” quoted telegrams ours,
The italics in the above point used to out objected portions to. objected Defendants to the introduction of portions ground the italicized that on telegrams the face of the appeared portions that such italicized were statements made attempt compromise an to and were Negoti- therefore inadmissible. peaceful ations for the disputes encouraged settlement of are to be and, they fail, testimony with reference thereto should be excluded trial Joseph Railway, on a of the cause. v. Light, St. Heat [Starnes Co., 44, & Power (2d) 852, S. W. But it is not 855.] always easy to determine what an compromise constitutes offer of or negotiations looking to that In end. 3 Jones’ Commentaries on Evi- (2 Ed.), dence page 1939, section we read: “It determine, particular case, is often difficult to in a what amounts ordinary admission, to an and what constitutes an offer compromise meaning general within the of the stated; rule above in- parties guide tention of the must be the in each case. If the intention is apparent liability bny concede from a lia- seek relief bility recognized such, ordinary against as it is an admission interest attempt and not an compromise; if, hand,, on the other proposal tentative, ‘buy is peace,’ made to idea of mutual with the concessions, point as to compromise.- such it is a mere offer of The test of -what compromise constitutes an offer of within rule is said to be whether the admission of the truth of facts on which hypothetical only, claim is based is in whieh case it cannot be re- garded any recognition opposing party’s claim, basis of the regard unconditional and accompanying made without circum- stances. say,
“Needless to
statements and admissions made before
dis-
pute
place,
took
attempted
or after an
compromise has been aban-
doned,
which, by
and admissions
nature, negative
their
com-
promise,
an
arrange
such as
endeavor to obtain
terms
time
payment,
upon
ground
are not to be
prevents
excluded
compromise
bona fide offer of
being
prejudice
used to the
”
party.
either
Mfg. Co.,
Moore Gaus & Sons
Mo.
plaintiff
demanding
of the defendant $2900 for certain work
done.
defendant claimed he was entitled to
on account
$600
charges
increased
plaintiff’s delay
insurance
suffered
in com-
pleting the
plaintiff
work. The
drew a draft on the defendant for
$2900,
price,
agent
and sent'it to
agent
his
to collect. The
on one
called
defendant’s officers and was told
said officer
that he
proposition
had left his
bookkeeper.
with his
The memo-
“proposition”—read:
randum —
“Twenty-seven
($2,700)
hundred dollars
paid
notes,
three
each,
sixty, ninety
$900
twenty
days,
one hundred and
without
interest, or there
acceptance
will not be an
of the work.”
Said memorandum was read in evidence and it was contended on
appeal that it should have been excluded as an
compromise.
offer of
*9
said,
111,
This court
113
l.Mo.
c.
“The rule offers of Greenleaf, is stated 192, pacification any sec. ‘that confidential overtures of other propositions litigating offers or parties, expressly between stated to prejudice, made grounds without on public pol- excluded icy.'’ ‘But in order to distinct exclude admissions of facts it must appear they either expressly that were prejudice, or, made without least, at were pending tréaty made under the faith of a party might into which thé have been led the confidence of a ’ ” taking compromise place. always further
The court said that the recognized had rule been in this applicable and enforced State but was hot to the facts of that case; that'there was “an unconditional demand for thé price,-and a counter-demand for as a $200 counterclaim for increased to tended evidence charges by delay;” that said suffered
insurance prove coupled with price liability for the contract an admission of rate of by increased a counterclaim for loss occasioned $200 ‘‘ threatened, made pending or insurance, litigation was made no when agent), with- authority and made accept (the no it to one who had to prejudice.” without out intimation that was confidential in the from the fact that competent. The Aside was held evidence agent to an had no question made who Moore case the offer point. And authority accept to us to be to it the seems decision might communicated suggest, fact, agent to the as anyway believe that was a principal, the offer to his we do not ap- case is controlling factor in the decision. The Moore cited with (2d) 1054, q. v. Huttig 471, 41 W. proval Brennan, v. 328 Mo. S. 564, Co., App. 215 Mo. 256 S. W. In v. Boston Insurance Farber defendant, trial, denying liability, 1079, at the where adjuster $8000, an for all pay that an to made court held offer interested, have been admitted as companies the insurance' should liability, being no it was of- an admission of there controversy disagreement having- compromise fered as a and no (We again prior shall later parties arisen between the offer. case.) Agricultural Co., 150 In Mason v. Ins. refer the Farber 17, 472, parties App. 129 W. it was held that an effort Mo. S. necessity ap- agree upon of loss of an the amount and avoid liability open, praisement, leaving question was not inadmis- Helsley, compromise. App. as v. sible 616, an offer Hunter 98 Mo. defendant, by contract, was to from the receive freight “at plaintiff stock of added.” The merchandise cost parties the efforts of determine the amount court held compromise freight purpose effecting for the but only to the amount due. ascertain Referring again It was Farber ease. decided the Kansas City Appeals. same court later in Court of The Starnes St. Jos- Railway, & eph Light, Co., Heat Power S. W. seems to case, in effect overrule the Farber and refers to criticize and some expressing- like appellate court cases views. The Court of other final Appeals’ opinion was decision the Starnes ease. That court, deeming opinion court certified case this its in conflict Springfield Appeals, with decisions of the St. Louis and Courts though originally ap- and here the case merits was decided being reported here, the pealed decision S. W. rely strongly (2d) 852, supra. for defendants Counsel Court say by this Appeals’ opinion, was affirmed court. But appellate opinion. not in terms affirm court’s this did result, opinion, its own as it reached the same wrote does when point considering, it in such manner. On we are a case reaches all, discussion, may at if it be called discussion is brief. *10 exchange in the $18 to return simply said, “Defendant’s offer compromise in an to plaintiff for a full release was terms effort from of refusal plaintiff’s manner existing difference, an and above-noted The court it.” plainly to he so understood accept indicates that to ef- quoted then hereinabove substance the said what have we encouraged.and to be negotiations peaceful settlement are fect that of that the have excluded that the- trial court should added holding appellate to the court’s offer, citing It did not refer cases. which the thereof, to the decisions nor point on that its discussion by this read cases cited court. the appellate court criticized. We existing case, contro- them, there was an In all of as in the Starnes incompetent to versy related evidence held or difference compromise or settlement thereof. negotiations looking to offers or in effect hold that case does of this court the Starnes decision though compromise 'is inadmissible made before an effort to offer or before suit filed, case was made suit was because that effort point of and, indeed, appears it to us that was the chief filed, was holding agree. With that Appeals’ opinion. Court telegram September In the instant case defendants’ any thought there was first intimation from either side that was abandoning contract, message hardly and even that could be repudiation an intended thereof. indicated understood indicate force, recognized the contract as valid and defendants only willing sought know amount which would controversy the par- At time no cancel it. there was between nothing portion italicized of that settle —and without ties— telegram, objected, it only part to which defendants could thereof hardly just telegram meant. It called for an be understood what answer, given. telegram Sep- until Not defendants’ they tember 24th a was there definite statement them any damages short, pay would not receive the —in comply definite refusal contract. Plaintiffs.’ second telegram 24th, message date, of that answer nothing they telegram, except in their added to what said first a more they except payment definite statement cancel named, .legal being damages. measure Plaintiffs sum demanding they simply asserting and what claimed their were legal rights and there no under intimation de- telegrams their then claimed fendants in the contract was telegrams shown we think the void. the circumstances were ad- telegrams Defendants’ tended to show that missible. then rec- validity of admitted the the contract. ognized assignment remaining of error III. Defendants’ is that the court1 discharged mistrial, should have declared at their re quest, have sustained their motion for trial, and should new because *11 alleged during
of It juror, appears misconduct of a Mr. Lemon. that approached an intermission in trial Mr. Lemon the course of the Quinn, attorneys, Mr. his hand plaintiffs’ James one of extended said,-"Your Quinn, accepting and Mr. Jimmy, name is isn’t it!” shaking Lemon, him he asked how extended hand and hands with Nothing- psychic.” "I knew, replied, jocularly, Lemon am which counsel, was observed defendants’ said. incident was more , jury discharged, who-reported it that the be court and asked request which the court denied: On the motion for trial new investigation concerning in heard evidence and full that made developed cident. It a Miss Carroll worked an office—not plaintiffs’ attorneys that of which Lemon also and worked. She —in They Lemon knew each other and had desks near each other. were merely casual quite friendly friends. Miss Carroll knew was and on terms with a Goldsmith, lawyer, Mr. a a who had desk the officeof plaintiffs’ attorneys, renting- space being office from them but not occasionally, connected with firm. during Miss Carroll lunch periods hours, after or her office to see Mr. called Goldsmith at said office, way representing and had met the of the firm members plaintiffs. Quinn, firm, On a few a occasions Mr. member had They places met Miss at only Carroll other than office. ac quaintances Through and friends. casual Mr. Goldsmith Miss Car Johnson, Quinn roll had learned that the firm of & Garnett were en gaged lawsuit, many in a years. which had been in court for She nothing knew parties nature the suit thereto. She had heard a engaged lawsuit which that firm had been long case,” been in had court for a time—the "mule —and might she wondered if day this be the same case. On the panel being Lemon, by was on voir examined dire she met chance, dur ing hour, the noon learned coming from him that a ease was up twenty-two years, had been in court about but he didn’t know whether he jury, as he attorneys, knew one of a Jost, attorneys. Mr. one evening of defendants’ That she met Lem on they worked, when he came officewhere leaving, as she was jury.” him Being asked if he was "on that informed that he attorneys. was she asked him who were the He did not know except Boatright, them Mr. another attorneys of defendants’ (Mr. present day), Jost was not description but from his she con Quinn cluded Mr. was one of them and said she would like to hear argue ease, him as she understood he capable public speaker had been an instructor at Harvard. Nothing was said talking the facts the case. about with Lemon she referred to Quinn "Jimmy.” appears Mr. It from the Quinn evidence Mr. everyone popular is a sort of man whom that knows him habitually "Jimmy.” Mr. Lemon told her he going calls to shake hands Quinn "Jimmy.” him Mr. call hearing developed at have stated in substance tbe facts We trial. said the court investi- motion for As we have new testimony persons fully. all who gated matter heard the subject light upon the of in- supposed could be to be able throw reading quiry. After of that evidence convinced careful nothing justified the court de- tends show setting Appellants’ verdict. counsel claring a mistrial or in aside the nothing clearly frankly and the evidence shows that there was admit anywise in’ improper unethical indicating conduct *12 They concede that the evi- practically plaintiffs’ counsel. really improper show conduct motive does not dence may have felt they suggest that Miss Carroll more juror, friendship of her with Goldsmith and her case, in the because interest disclosed, testimony, in her Quinn, with than she acquaintance unconsciously himself, may perhaps even been juror, that the through acquaintance unduly plaintiffs’ favor his influenced seems lady. contention to us to be based on young The whole suspicion, the facts disclosed. conjecture and unwarranted mere court should be affirmed. It is of the circuit so or- judgment concurs; G., Westimes, G., Bohling, paragraph concurs in II dered. result.
as to by Cooley, C., foregoing opinion is adopted PEE CUEIAM:—The judges All the opinion the court. concur. as the Jackson, Appellant. W. 595. The State Chester July 7, Two, Division 1939.