161 Mo. App. 23 | Mo. Ct. App. | 1912
Plaintiff is a real estate agent and his action is to recover a commission for the sale of real estate belonging to defendant. He had judgment in the circuit court.
It appears that defendant owned a farm in Pettis county of 800 acres, and a house in Sedalia in the same county, and that one Reuben Mastín owned a large farm in Jackson county containing over 1400 acres, and each wanted to sell. Plaintiff lived in Sedalia and claimed to represent defendant, while J. H. Lipscomb, a real estate agent, resided in Kansas City and represented Mastin. Mastin sold his farm to defendant, taking the latter’s farm and Sedalia house in part payment. Lipscomb demanded a commission of Mastín which the latter refused to pay. A suit followed in which -Lipscomb recovered a judgment for $3594.45, which was affirmed in this court, (Lipscomb v. Mastin, 142 Mo. App. 228). After that suit was finally determined plaintiff instituted this action.
The evidence establishes that plaintiff and Lipscomb were under an agreement with each other that they should share equally in the commissions to be charged to Mastin and defendant, and there was evidence tending to show that this defendant knew of this arrangement. The evidence also establishes that Lipscomb has paid plaintiff one-half the commission which he collected from Mastín, less one-half the expenses, including the suit; and that plaintiff is to pay Lipscomb one-half of what he may recover in this action, less one-half the expense of litigation in obtaining it. The evidence further disclosed that defendant is a very old man and that most of the negotiations
In this state of facts and of the record Lipscomb, over the objection of defendant, was permitted to testify in behalf of the plaintiff. We think he was not a competent witness. We do not put his incompetency on the ground that he was interested in the result of the cause of action, for the common-law disability by reason of interest is removed by the statute. Sec. 6354, R. S. 1909.] The ground of his disability is that defendant is insane. While a witness who is interested when the other party is dead or insane, is, in fact, for most purposes incompetent, the incompetency arises from death or insanity of the other party and not from interest of the witness. The importance of this distinction is shown by the fact that for some purposes the interested witness is competent under the statute. [Weiermueller v. Scullin, 203 Mo. 466; Jackson v. Smith, 139 Mo. App. 691.] It is therefore urged by plaintiff that since Lipscomb’s interes't did not disqualify him, and since he is not a party to the suit or, as is claimed, to the cause of action, he is a competent witness. We agree he is not a party to the suit, but whether he is a party to the contract we will speak of further on.
It was held by the Supreme Court in construing the statute in Looker v. Davis, 47 Mo. 140, that to render a witness incompetent he must have been, not only a party to the original contract in . issue, but also a party to the record in the suit. The same ruling was made in Kenyon v. Peirce, 17 R. I. 794; Chamberlin v. Chamberlin, 4 Allen, 184; Bigelow v. Heyer, 3 Allen, 243; Granger v. Bassett, 98 Mass. l. c. 468; Wright v. Gilbert, 51 Md. 146, 156. Some of those decisions contain clear statements of the reason for such construction of the statute, and cite Looker v. Davis with other authorities. We find that Looker v. Davis has
We have not overlooked that Meier v. Thieman, 90 Mo. 433, a case arising before the amendment, without noticing Looker v. Davis, ruled that a party to the contract or cause of action with the deceased was an incompetent witness, though not a party to the suit, and that the words “the other party” did not refer to the party to the suit but “to the party to the contract;” leaving out of view, that though the words do refer to the other party to the contract such other party must also have been a party to the suit in order to have been incompetent as a witness before the amendment. This ruling was made in a case where the witness was not only not a party to the suit, but was not a party to the contract or cause of action. The real reason for pronouncing the. witness incompetent is that he was interested, and in that respect the case cannot be reconciled with Weiermueller v. Scullin, supra. It will be further noticed that the witness was said to be incompetent on the ground that he was at common law, citing Angell v. Hester, 64 Mo. 142 and Ring v. Jamison, 66 Mo. 424. But those cases, together with Curd v. Brown, 148 Mo. 82, were overruled in Weiermueller v. Scullin.
But regardless of that case, for it has no bearing on this case, it seems to be clear under our present
This construction of the statute as amended avoids injustice, possible before the amendment. Many instances could be given where the original party to the contract is not a party to the suit and yet is to receive the entire benefit of it, and whose testimony would be “in his own favor.” We should here state that we overlooked the fact that the statute had been amended since Looker v. Davis was decided, when writing the second branch of Jackson v. Smith, 139 Mo. App., beginning on page 699 of the report.
We are thus free to inquire whether Lipscomb was a’party to the contract or cause of action here involved. We have already stated that the record shows he entered into and became interested in the contract. He came to be jointly interested in it by an understanding with .plaintiff and defendant; that is to say, plaintiff agreed to give him half of it for his joint effort in promoting the sale for defendant, and- the latter agreed that that might be done. He thereby became interested in the contract, and became obligated to perform it with plaintiff. It is true bis interest would not disqualify him as a witness, but such interest may have its influence, in a proper case, in determining whether he was a party to the contract. Qn the ground that he was a party to the contract we hold error was committed in permitting him to testify.
But it is insisted that though he was incompetent, his being allowed to testify was not reversible error, on the ground, that the matter here referred to was shown by the uncontradicted evidence of the plaintiff. The difficulty with that position is that plaintiff was
We have already shown the joint interest of Lipscomb and .this plaintiff in the claims against Mastin and against this defendant. , While they may not have been partners in a strict sense, they were practically so. They had equal shares in each claim, and each was equally interested in the case against Mastin and in this case against Clement. Both were assisting in the prosecution of each suit, and both were present at the trial of each, and each should be held for the position taken by the other.
It is the law that an agent representing both buyer and seller is occupying an improper and illegal position; and that he cannot recover commission from either, unless his dual capacity was known and consented to by the parties. This proposition of law was interposed against Lipscomb to defeat his recovery in the case against Mastin, and it was met by a denial in that case that this plaintiff was Clement’s agent, and this court’s opinion in that case was based partly on the fact that he was not such agent.
But in this case the opposite ground is taken, for it is based on the claim that he was such agent, but that his principal knew of his double agency and consented to it. In other words, plaintiff and Lipscomb obtained a judgment, in the latter’s name, against one of these parties by the claim that plaintiff was not an agent of defendant, and now are endeavoring to obtain a judgment against the other party by the claim that he was such agent. These positions are irreconcilable. The Supreme Court of the United States in Davis v. Wackerle, 156 U. S. 689, lays down the following rule: “It may be laid down as a legal proposition that where a party assumes and maintains a position in a legal
An application of this law would defeat the plaintiffs claim if it appears on a retrial that Lipscomb and plaintiff were jointly interested in the two claims and the suits to recover judgment on them; and that, each of the suits were in fact prosecuted and conducted by both. In such case it would then be proper to show the position taken in the Mastín case and to that end briefs in that case would be competent along with the opinion of this court in that case on that subject-.
The judgment is reversed and the cause remanded.
