46 Mo. App. 236 | Mo. Ct. App. | 1891
On January 10, 1890, N. C. Merrill commenced his action in the circuit court of Jackson county, Missouri, against the Central Trust Company, alleging as-his cause of actioAthat on or abuutthe twenty-eighth day of August, 1889, he had sold and delivered to the defendant certain municipal bonds of the townships of Center and Forrester, and the city of Ness City, a city of the third class, inNess county, Kansas, issued under an act of the legislature of the state of Kansas, entitled “ An act to-encourage the erection of mills and the manufacture of sugar and syrup out of sorghum cane, and authorizing-townships and cities of the second and third class to subscribe for stock in sugar factories and to vote bonds therefor,” as follows: Bonds of Center township, $15,000; bonds of Forrester township, $15,000; and bonds of the city of Ness City, $15,000 : total $45,000, ate ninety cents on the dollar of the face of said bonds, flat,” that the sale and delivery of said bonds was, however, upon the express condition that said sugar bonds should be compromised and refunded under an act of the legislature of the state of Kansas, approved, March 8, 1879, entitled, “An act to enable counties, municipal corporations, the board of education of any city, and school districts, to refund their indebtedness ;”* said refunding to be under the direction of said defendant ; that said agreement and contract more . fully
The purchase price of these bonds at ninety cents flat was...................... $40,500 00
Appellant paid thereon:
September 12, 1889, advance on purchase price............$10,000 00
October 14, 1889............... 2,000 00
October 21, 1889............... 23,500 00
December 13, 1889............. 3,924 22 $39,424 22
Balance unpaid............ $ 1,075 78
This action was brought to recover this balance and interest, but by mistake the amount claimed in the petition is $15 less than this. On the trial it was not disputed that this balance was unpaid, but appellant
Discount on Merrill’s note of $10,000...........$ 73 74
Accrued interest thereon......... 13 19
Express on bonds to Hess City................ 11 20
Expense of sending Deane to Ness City........ 50 00
Expense of sending Deane to Ness City........ 73 35
Accrued interest on the sugar bonds, thrown off by way of compromise to induce the municipalities to refund them................... 787 50
The principal contention on the facts arises as to the above-named “discount on Merrill’s note of $10,000,” $73.34, and the last item of $787.50 “accrued interest on sugar bonds.” By the agreement for purchase of the bonds defendant promised to make an advancement to plaintiff, and the $10,000 credited on plaintiff’s account he says was as such advancement, and that he gave his note to defendant for that sum as .simply evidence of such advancement. While defendant asserts the advancement of a loan, and that the note by it was discounted to raise money for the common benefit, and that the discount should be charged up to plaintiff, etc. The item of $787.50 is claimed by defendant as the interest accrued on the first batch of bonds before they were exchanged for the refunding bonds, and. which plaintiff, it is alleged, threw off and gave to the townships in compromise without the authority of defendant. On the other hand plaintiff claims that he was authorized to make such compromise, and that defendant well knew at the time that such accrued interest on the first series of bonds was to be, and was, given up, and that defendant accepted such new bonds fully understanding the premises. The cause was submitted to a jury, under instructions given at the instance of both plaintiff and defendant, and the verdict and judgment was in plaintiff’s favor for the full amount claimed, and defendant appealed.
II. The next matter complained of is in words of counsel that “the court erred in excluding as evidence the various letters which passed between plaintiff and defendant, showing the nature of the transactions between them, and their understanding from time to time of their said bond transaction.” We cannot undertake to pass on the question, for the very apparent reason that we are not furnished-by the appellant in its abstract with the contents of said “various letters.” Hence, we cannot say that the exclusion thereof was proper or improper. On page 21 of the abstract all that is said as to letters offered is this: “Defendant offered letters of N. C. Merrill, dated September 19, September 21, September 24, October 2, October 5, October 7, October 8, October 17, October 23, N ovember 6, November 8, November 8, November 28, showing correspondence about refunding of the bonds. All excluded; defendant excepts.” It would seem hardly
III. A further complaint is, that “the court erred in excluding as evidence the verbal conversation, contract and agreement had between plaintiff and defendant at Kansas City on September 12, 1889.” During the progress of the trial, defendant attempted- to prove by a witness on the stand that in September, 1889 (some time after the original written contract was entered into), plaintiff and defendant’s managing officer met in Kansas City and orally agreed upon a modification or amendment of the old contract. The court inquired if there was any consideration for such new or modified contract, and, the defendant’s counsel failing to claim or to make proof of any, the court sustained an objection to such evidence. In addition to this, plaintiff’s counsel, in his brief and supplemental abstract, asserts that in the original answer no such new or modified contract was pleaded, and that when these questions were first propounded the amended answer had not been filed. This being true then it is clear that the court ruled properly in this matter. By failing to deny under oath the execution of the contract declared on in petition its execution stood confessed.
IV. The further assignments of error (numbered 4, 5 and 6) relate to the giving and refusing instructions, but from the faulty manner of presenting the same we cannot say whether or not the court erred. For instance in assignment 4 it seems defendant’s counsel makes some objections to instructions given at the request of plaintiff; but such instructions are not set out anywhere, in abstractor brief; and, hence, not having the same before us, it is impossible for us to say whether such instructions were properly or erroneously given. And in the assignments of error, numbered 5 and 6, complaint is made of the court’s refusal to give defendant’s instructions 8 and 5, when it does not appear from the abstract that they were refused. The showing is that such instructions were offered, but it is not said whether they were given or not. Besides it may be that other instructions given by the court duly and properly presented all the law of the case, and that these instructions (said to be refused) were wholly unnecessary ; and, since we are not informed as to what were given, we are justified in the conclusion that these offered instructions were properly rejected. In order to a full understanding of the court’s action in this regard, all the instructions given by the court should be exhibited to us.
Since then from this imperfect record we can discover no reversible error, the judgment of the circuit court must be affirmed, and it is so ordered.