64 Mo. App. 629 | Mo. Ct. App. | 1896
Lead Opinion
This is an action to recover damages for the breach of a contract. Stripped of all superfluous and needless allegations, the petition will be found to allege about these facts:
First. That plaintiffs, husband and wife, in 1886 executed a bond to W. J. Neil, for $1,200, payable at the Third National Bank of the city of New York, five years after date, bearing eight per cent interest from date, and ten per cent after maturity, to secure which said bond the plaintiffs executed a mortgage on certain real estate of the value of $3,000, occupied by them as a homestead.
Second. That defendant was, at and before the transactions hereinafter mentioned, engaged in the business of loaning money on real estate, for others, renewing and releasing such loans, making abstracts of title to real estate, and holding himself out to the public as a general loan and financial agent, and, as such, doing business for the public generally.
Third. That when the Neil bond was about to mature, plaintiffs applied to defendant to negotiate another loan for them, with which to discharge said Neil bond; and that thereupon plaintiffs and defendant entered into an agreement, whereby the defendant agreed that if the plaintiffs would execute and deliver to him their note for $1,300, payable to the New England trust company, of which he claimed to be the agent, payable five years after date, at eight per cent interest, and also their notes amounting to $131.60, payable also in five years, and would execute and deliver to defendant deeds of trust on their said real estate, already subject to the Neil mortgage, to secure the payment of said notes, he, defendant, would, in
Fourth. That afterward, the Bates circuit court, in an action therein pending, wherein the present plaintiffs were plaintiffs, and May A. Shover, the assignee of said Neil bond, and others, were defendants, ordered and decreed the foreclosure of said mortgage and a sale of said mortgaged lands; and that subsequently said lands were sold under said decree for $1,620 and at a loss to plaintiff in the sum of $1,500.
The petition further alleged that after the money had been procured by the defendant from the said New England Loan and Trust Company, the defendant brought the suit in which the decree just above mentioned was rendered, the primary object of which was to obtain a decree declaring that the payment of the Neil bond made by defendant to the Western Farm Mortgage Trust Company of Denver, Colorado, was a satisfaction thereof, and that the lien of the mortgage given to secure the same be discharged; that there was a trial of said cause, which resulted in a decree against
The answer is a general denial. There was a trial and judgment for plaintiff. Defendant has appealed.
The defendant at the inception of the trial objected to the introduction of any evidence, on the ground that the petition shows that the transaction between the plaintiffs and defendant was with the latter in the capacity of agent for the New England Loan and Trust Company, and that the liability, if any, was not that of the defendant, the agent, but that of his principal, the New England Loan and Trust Company. The law is that it is perfectly competent for an agent, although fully authorized to bind his principal, to pledge his own personal responsibility, if he prefers to do so. Mechem on Agency, sec. 558; Story on Agency, sec. 269; Hovey v. Pitcher, 13 Mo. 192; Einstein v. Holt, 52 Mo. 340; Zeigler v. Fallon, 28 Mo. App. 295; Johnson v. Smith, 21 Conn. 627; Hall v. Crandall, 29 Cal. 567; Higgins v. Senior, 8 Mees. & Wels. 833; Beebe v. Robert, 12 Wend. 413.
The solution of the question thus presented involves the construction of the allegations of the petition; or, in other words, we must determine from the language of such allegations, whether the action is on
The defendant undertook as an individual, for a consideration, to procure the loan needed by plaintiffs and with it to pay off the Neil bond and obtain a release of the lien of the mortgage given to secure the same. He was to accomplish certain specified things, for which plaintiffs were to pay him the difference between the amount of the Neil bond and the loan to be procured. If the defendant was acting in the capacity of agent for the New England Loan and Trust Company, in making the payment of the Neil bond, to the defunct Colorado mortgage company, why did he not bring the suit in the name of the New England Loan and Trust Company instead of in that of the plaintiffs! If the money in his hands was still that of the said New England Loan and Trust Company and not that of the plaintiffs, then his payment of it to the defunct Colorado corporation was not a matter with which plaintiffs were concerned. Such payment was not that of plaintiffs and no action accrued to them.. They had no right to call
The inference deducible from the allegations of the petition in relation to the suit therein mentioned, is that such suit was brought by the defendant on his own motion and responsibility, and, therefore, if costs were adjudged against plaintiffs, which were collected by a sale of their property, they were entitled to recover back the same of defendant. The ease of Milstead v. The Equitable Mortgage Company, 49 Mo. App. 188, cited by the’ defendant, is without application. There plaintiff applied through an agent of the defendant for a loan. He executed and delivered to defendant a note, secured by a deed of trust on real estate, which was accepted by the latter. The defendant sent the money to the agent, who embezzled the same. The. plaintiff brought suit against defendant for the amount of the loan for which he had given the note and deed of trust. The letter transmitting the money to the agent specifically stated the terms and conditions on which the agent was to deliver the money to plaintiff. There was no distinct evidence adduced showing that defendant paid -the money to the agent in his character as agent of plaintiff. It was ruled that
The defendant further objects that the court erred in permitting the plaintiffs to read in evidence the testimony of the defendant from the bill of exceptions on file in Padley v. Neil, and others. The act of March 21, 1891 (see Acts, 1891, p. 138), provides that whenever any competent evidence shall have been preserved in any bill of exceptions in a cause, the same may be thereafter used in the same manner and with like effect as if such testimony had been preserved in a deposition in said cause; but the party against whom such testimony of any witness may be used, shall be permitted to prove any matters contradictory thereof, as though such witness were present testifying in person. Two years before the passage of this act by the legislature, the St. Louis court of appeals, in Lesser v. Beckhoff, 38 Mo. App. 445, ruled that the testimony of the plaintiff and another witness taken at the former trial of the case, which had been preserved by a bill of exceptions, could not be received in evidence. It was remarked by the judge who delivered the opinion in that case, that there was “a difference between the evidence of a party as preserved in a deposition and that contained in a bill of exceptions. The deposition is signed by the party and authenticated by an officer, and from it can be ascertained with certainty the extent and character of the declarations or admissions, but this can not be said of a bill of exceptions.” But the said act of 1891 declares that the testimony of a witness preserved in a bill of exceptions may be used in the same manner and with like effect as if such testimony had been preserved in a deposition. Thus, by the very terms of the act, the difference theretofore existing between the testimony of a witness preserved in a bill of exceptions and that pre
Now, treating the testimony of defendant which was read in evidence, as if it were in the form of a deposition, was it not properly admitted in evidence? In Bogie v. Nolan, 96 Mo. 85, it was said that the rule of evidence is that ‘ ‘the declarations of a party to the suit may be given in evidence against him — a rule that hitherto has had no respect for time or place, always presuming that a man’s statements as against himself are truthful, whether made in court or out of court, on oath, or in casual conversation, orally or in writing. They all rest on the same principle, that a man is not apt to declare a fact against his own interest, unless it be true. In principle, there can be no difference in the character of this evidence, whether the declarations are made in the deposition of the party taken in his own ease then on trial, his deposition taken in another case, to which he was a party, or taken as a witness in a case in which he toas not a party and had no interest. They are admissible in each case for the same reason, not as the deposition of a witness imder the statute, but as the declarations of a party to the suit. The ruling in the above case overthrew that of the majority in Priest v. Way, 87 Mo. 16, and, in effect, adopted the very able dissenting opinion therein delivered by Judge Sherwood. And to the same effect are Kritzer v. Smith, 21 Mo. 296; Charleson v. Hunt, 27 Mo. 34; State v. Bank, 80 Mo. 626; Pomeroy v. Benton, 77 Mo. 64; State v. Eddings, 71 Mo. 545.
It is, therefore, obvious that the declarations and admissions of the defendant, to be found in his testimony preserved in the said bill of exceptions, were as admissible as if made in the not more solemn form of a
Nor, in permitting the plaintiff to show no release of the Neil mortgage had been procured by defendant. This is the very pith of the plaintiff’s cause of action. The defendant bound himself to procure the loan and with the proceeds of it to take up the Neil bond at its maturity and obtain a release of the mortgage lien to secure the same. This was the time he obliged himself to perform this service for the plaintiff. It is not pretended that he then, or within a reasonable time thereafter, either paid the note or secured a release of the lien of the mortgage. The fact that he brought the suit in the name of the plaintiffs against Shover and others, to have the lien of the Neil mortgage declared released, did not show that he had performed his agreement with plaintiff, but rather to the contrary.
Nor was there any error in the action of the court in striking out three questions and the answers thereto of one of the plaintiffs. Whether plaintiffs would have remitted the money in payment of the Neil bond, to the defunct Colorado Mortgage Company, if they had undertaken to pay it off, was immaterial. They are shown to have been plain farm people, presumably not familiar with the manner in which the complicated matters in which they were concerned were to be transacted, and for the’ accomplishment of which they had engaged the skill, care, and diligence of the defendant. The manner in which plaintiffs, unskilled as they were, would have undertaken to accomplish the transaction referred to, would have furnished no criterion by which to judge the skill and prudence that should be exercised by one holding himself out to the public, as defendant did, as impliedly possessing the knowledge and skill required to conduct a business transaction of that kind.
It may have been, and probably was, improper to allow one of the plaintiffs to testify that he did not know where the Neil bond was payable; but if it was, we can not see that it was prejudicial to the defendant. The case was tried by both parties on the theory that the action was founded upon contract and not negligence, and from that theory neither of them can depart in this court.
The petition, to which no objection was in any way made, sufficiently stated facts to authorize a recovery, either for the money which defendant received of the New England Loan and Trust Company, for plaintiff, and did not apply as required by the agreement, or for the difference between the value of the land and the amount it brought at the sheriff’s sale, under the decree of foreclosure. A plaintiff may have any judgment to which the facts stated in his petition entitle him, whether asked for or not in the prayer of his petition. McQuillin, PI. and Pr., sec. 323. The court, by its instruction, submitted the case, as it had a right to under the allegations of the petition, to the jury, upon the first of the above indicated theories.
We see no error in the court directing the jury, if they found the $1,242 was left in the defendant’s hands to pay off the Neil bond and that he failed to do so, then their verdict should be for plaintiff for that amount, with six per cent interest added.
Nor is any error perceived in that part of said instruction which directed the jury that if the suit brought by defendant in the name of plaintiffs against Shover and others failed, and the costs were all adjudged against plaintiffs and paid by them, they should find for plaintiff the amount of costs so paid and interest thereon at six per cent per annum from the date of payment.
The instruction requested by defendant and given
No error is perceived in the action of the court in refusing defendant’s instructions. They were either inapplicable, or covered the same ground as those given by the court on its own motion.
An examination of the entire record has not convinced us that the trial court has committed any error prejudicial to the defendant on the merits and so we must affirm the judgment.
Rehearing
ON MOTION POE EEHEAEING.
In the opinion, on the authority of Watson v. Harmon, 85 Mo. 443, and Spencer v. Vance, 57 Mo. 427, and other cases, it was stated that the plaintiff’s instruction directing the jury as a matter of law that if they found for plaintiff, to allow six per cent interest thereon, from the time the money came into the hands of the defendant, was proper.
Since writing the opinion, our attention has been called to the case of State ex rel. v. Hope, 121 Mo. 34, where it is said, that “this statute (Revised Statutes, section 4430), has been substantially the same since 1845, when it seems to have been first enacted, yet it was- never adverted to in any of the decisions of this court, heretofore cited, nor has the question now under consideration ever, at any time, been passed upon by this court.” The opinion then proceeds to condemn an instruction, which, as a matter of law, required the jury, if the finding was for the plaintiff, to allow interest at six per cent. It is declared that the allowance of interest in such cases is a matter of discretion with the jury under the statute.
Here the action for the recovery of damages arises out of the breach of a contract, by failing to apply a certain sum of money placed in defendant’s hands by the. plaintiffs. It is true the defendant stood in the attitude of having wrongfully converted the plaintiffs’
Upon principle, this case would seem to be like that of a common carrier, who, under his contract of affreightment, had received the goods of a shipper, to be carried and delivered, for a valuable consideration, to a consignee at a certain place, and who, instead of performing his contract, delivered the goods to a stranger or refused to carry or safely deliver them at all, whereby they are lost to the shipper. In such case, the measure of damages would be the value of the goods, with interest from the day they should have been delivered. In Gray v. Packet Company, 64 Mo. 47, the facts were somewhat analogous to those in the case just supposed, and it was declared that an instruction was proper which told the jury that if they found for plaintiff to allow interest on the actual value of the property from the day it should have been delivered. To the same effect is Dunn v. Railroad, 68 Mo. 268.
Besides this, the defendant had the use of plaintiffs’ money, or, which is the same thing as far as plaintiffs are concerned, he deprived the plaintiffs of the use of it, and'for that reason, if for none other, plaintiffs were entitled to interest. Webster v. Railroad, 116 Mo. 114.
My conclusion is that the section of the statute just adverted to has no application to actions ex contractu, but to certain actions in form ex delicto. Indeed, the section is to be found in the chapter of the statute relating to actions for “damages and contributions in actions of torts.” E. S., p. 1010.