20 Mo. App. 166 | Mo. Ct. App. | 1886
I. It is difficult to determine on what theory the trial court tried this case. It is certainly remarkable that the trial court should find there was no express contract between the parties, when both of them (and they were the only witnesses speaking to this issue) testified that there was an express agreement. They only differ as to the terms of the contract, the one contending that it was unconditional, the other that; it was conditional as to whether the stipulated sum should be paid. The plaintiff, for instance, testified directly, that “the arrangement between defendant and me was, that I should manage the business, etc., and for that he was to pay me two hundred dollars a month.”
In finding there was no express contract, the court, therefore, wholly discredited and rejected the statement of plaintiff. The defendant likewise testified to an express contract. By the finding of the court on the first count it would seem that it also discredited the defendant’s testimony.
Respondent’s counsel attempt, by a suggestion made in their brief, to justify this rejection of defendant’s testimony on the ground that it .disclosed a contract forbidden by law, as being contrary to public policy and good morals. But this is not tenable, for the reason that the court refused defendant’s fourth declaration of law,
Where both parties claim, and all the testimony tends to show, that there was an express contract of one kind or the other, I cannot comprehend how the court could find there was only an implied contract, contrary to the understanding of both parties. “The law will not imply a promise, when there was an express promise; so the law will not imply a promise of any person against his own express declaration, because such declaration is repugnant to any implication of a promise.” Whiting v. Sullivan, 7 Mass. 107.
II. If the contract was as stated by defendant it would control the plaintiff’s recovery. If it were illegal, as contrary to public policy, as suggested by plaintiff’s counsel, both parties being in pari delicto, the defendant could invoke it as a defence to the action of plaintiff. The moment the fact of its illegality appeared, the court would refuse relief to either party, and leave them just where their illicit agreement placed them, without any remedy in court. Tyler et al. v. Larimore, 19 Mo. App. 445, and cases cited, and Green v. Corrigan, Sup. Crt. Mo., decided this term.
It was perfectly competent, also, for defendant to introduce this proof under the general issue. There was no objection interposed by plaintiff to this evidence. The evidence went to show that the contract under which plaintiff claimed was never made, and, therefore, his cause of action under the first count, never existed. Such proof may be made under a general denial. Greenway v. James, 34 Mo. 328; Northup et al. v. Ins. Co., 47 Mo. 443-444; Tyler v. Larimore, supra.
III. Counsel for plaintiff further undertake to j ustify the finding of the court on the rule that the jury are the sole judges of the credibility of the witnesses, and that there is no power in this court to coerce the judgment of the triers of the facts. This may be conceded to be the general rule. But I do not find that it has ever been so applied as to enable a plaintiff to recover on an implied
But what is a more conclusive answer to this position is that the court did not determine the case by wholly dis- • crediting the statement of the defendant, and by wholly •rejecting it as untrue. The court refused to give the instructions, or any of them, asked by defendant, predicated of the facts to which he testified. Not having presented in any instruction given the proposition of law .contained in those refused, its action can only be justified on the ground, either that there was no evidence to support the instructions, or that the principles of law contained in them were incorrect. Without entering into details, it is sufficient to say, that, after a careful review .of the evidence preserved in the record, we are well satisfied there was ample proof to support the second instruction.
The defendant testified directly to the contract; and •viewing the cross-examination of the plaintiff, his equivocation and lack of candor, in connection with all the other facts and circumstances in evidence, there was ample proof to warrant a jury in finding that the plaintiff accomplished practically all he1 proposed in the way of regaining control of the goods; that he was the party benefited thereby ; and even if the goods were turned •over by Saltsman to plaintiff’s wife, it was for his benefit, .as he thereby discharged a debt he was owing to her, and that Saltsman in the whole matter was acting as plaintiff ’s agent in fact. At all events the proofs were sufficient to demand a submission of the facts to a jury.
Although the trial was had before'the court, sitting’ as a jury, we can only determine the theory on which the •court tried the case by the declarations of law given and refused. Wielandy v. Lemuel, 47 Mo. 322. And the •court in such case should not deny to a party declarations
If the jury should find the facts to be, as predicated in the second instruction asked by defendant, the law would be that plaintiff could not recover. “Where a person agrees to serve gratuitously, no promise to pay a reasonable compensation can be implied, and where a person serves under an agreement, or upon the understanding that the payment of compensation shall depend upon the happening of a certain contingency, which contingency does not happen, no recovery can be had, however beneficial the services may have been. The agreement of the parties, if there be one, or if not, their understanding as to the matter of compensation, is to •control, but if there be no agreement or definite understanding, and no circumstances that would repel such presumption, the law will imply a promise to pay the reasonable value of such services.” Wood’s Servant and Master, sect. 66.
The second and third instructions, asked by defendant, should have been given, and the court erred in refusing them. And as respondent’s counsel concede, at this hearing, that the contract testified to by defendant was illegal, because “the assignee being the trustee of an express trust, and an officer for the time of the circuit court, under its control and direction, no such arrangement was permissible between him and the assignor,” it would follow that the fourth instruction asked by defendant ■should have been given.
The judgment is reversed, and the cause remanded.