105 Mo. 244 | Mo. | 1891
When this cause was here on the former appeal, this court held that the county court had ample power to make the contract sued on, and that the defense that the suit brought by plaintiff’s firm was useless, because this court had held the subscription void in State ex rel. Wilson v. Garroutte, 67 Mo. 446, was not tenable. The bonds had been held valid by the United States circuit court. The decision in Wilson v. Garroutte was by a divided court, two of the judges dissenting.
Counsel for the defendant makes no point in his brief or argument upon the action of the circuit court in excluding certain evidence, and we might well assume he has abandoned the point; but, any way, we think no error was committed in excluding the evidence. The railroad, claiming to have acquired the subscription in question, was not a party to either of those suits ; and, of course, would not have been bound thereby.
The contention of defendant seems to hinge upon the remark of the judge delivering the opinion in this case, when here on the first appeal, “ that it was not
It is very significant that when this cause was tried the first time, and during the lifetime of Col. Young, that this charge affecting his character as a man, and integrity as a lawyer, was not even suggested ; but, when ho was no longer present to refute it, was for the first time offered as a defense. Indeed, counsel for defendant does not seem to rely upon any other defense to-reverse the action of the lower court. He insists that the circuit court erred in ignoring the charge of fraud, and instructing for the plaintiff. Certainly, the learned counsel does not expect this court to give much weight to his suggestion of fraud, when he, himself, declines to even make an abstract of the evidence upon which he relied to establish fraudulent conduct on the part of Col. Young. The respondent, however, has supplied all the evidence on that branch of the case, and it is a source of gratification that it not only does not support the charge, but completely exonerates Col. Young from even a suspicion of unfairness in making the contract.
The salutary rule of law that there must be some tangible and substantial evidence tending to prove the necessary facts to constitute a cause of action or defense, before a court is authorized to submit an issue founded on it to a jury, is so well settled that no-citation of authority is necessary.
There was no evidence of fraud, and the other material issues were decided against defendant when the cause was here before. Thrasher v. Greene Co., 87 Mo. 419.
There being no error in refusing defendant’s instructions, the judgment of the circuit court is affirmed.