68 Mo. App. 527 | Mo. Ct. App. | 1897
This action was begun before a justice of the peace. The plaintiff sues as the indorsee of a negotiable note which was executed by the defendants and made payable to L. S. Rider, the plaintiff’s husband. The note is for $250, is dated April 10, 1891, and matured October 10, following. The plaintiff claims to be the purchaser and indorser of the note before its maturity. The .defense which was made orally is to the effect that the alleged purchase of the note by the plaintiff was after its maturity; that on of the day before the note matured, to wit, October.9 or 10,1891, and while L. S. Rider still held the note the defendant S. "W. Culp, represented Rider in a certain real estate transaction, in which it was agreed that Culp’s compensation should be $250, and that. that
At the instance of the defendants the court instructed the jury as follows, of which the plaintiff complains:
instruction. “The court instructs the jury that, if they believe from the evidence that L. S. Rider, the payee of the note sued on, employed the defendant, Samuel W. Culp, to secure him a trade or exchange for a lot of horses, and that in pursuance of said employment, the said Gulp secured for him a party ready, able, and willing to trade for said horses, and that he brought said Rider and said party together, and that about October 10, 1891, they came to a satisfactory agreement of trade, acceptable to both, and that the said Rider, at said time, agreed that he would pay and allow the said Gulp the sum of two hundred and fifty ($250) dollars for his services, in bringing about said agreement of trade, the same to*533 go on the said note sued on as a payment thereon, and that at said time the said L. S. Rider held said note, and had not sold or negotiated it for value, then the court instructs you that the said agreement would operate as a payment on said note, and any subsequent holder of said note would only be entitled to recover whatever may remain on said note, after allowing said credit of two hundred and fifty dollars; unless you further find that at said time the said Culp was acting as the agent of W. J. Hollis, as in another instruction explained.”
The objection made to this instruction is that it submits to the jury a question of law, in that it required the jury to find “that there was an agreement to trade.” There is no dispute that such an agreement was in fact made. The letters which plaintiff read in evidence tend strongly to prove it. The plaintiff’s only contention at the trial was that Culp acted as agent for both parties, and therefore he could not lawfully exact commissions from either. It may be conceded that the instruction, in a case where the issues were different, might be prejudicial, but we can not conceive how the plaintiff was prejudiced.
The court 'of its own motion gave the following instruction, to which the plaintiff excepted:
^haSSenA. “The court instructs you that if you believe and find from the evidence that the defendant, S. W. Culp, without the knowledge or consent of L. S. Rider, acted for and as the agent of W. J. Hollis, in the exchange of the horses of L. S. Rider for the house and lot of said "W. J. Hollis, then the court instructs you that said defendant Culp is not entitled to recover and your verdict should be for the plaintiff for the full amount claimed, viz: $250, and interest from April 10, 1891, at 10 per cent.”
Other questions are discussed in the briefs, but we do not deem it necessary to give them particular notice, as the result would be the same.
The judgment of the circuit court will be affirmed.