Griswold v. Haas
| Decision Date | 16 November 1909 |
| Parties | P. A. GRISWOLD, Commissioner, Respondent, v. MAX HAAS, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted, November 2, 1909.
Appeal from St. Louis City Circuit Court.--Hon. Robt. M. Foster Judge.
REVERSED.
STATEMENT.--The plaintiff, respondent here, under appointment as commissioner by the court, advertised and auctioned six bonds of an electric railway, light and power company, the bonds having come into possession of the circuit court of the city of St Louis through plaintiff as its commissioner, and the court having ordered a sale thereof, the sale was advertised to take place, the conditions being a cash payment of $ 15 at the time of the sale, balance to be paid when sale was approved by the court. The petition or statement in the case the case having been originally instituted before a justice of the peace, after stating these facts, set out that at the sale the defendant being the highest and best bidder for the bonds, they were struck off and sold to him for $ 276; that defendant then paid to plaintiff $ 15, the cash payment required; that the sale was afterward approved by the court that afterwards plaintiff made a tender of the bonds to the defendant, demanding the balance, $ 261, but defendant refused to pay that or receive the bonds. The statement further avers that plaintiff is now and has ever been ready to deliver the bonds to the defendant upon payment of the purchase price. That afterwards the circuit court ordered plaintiff to institute legal proceedings to recover the balance of the purchase price. Judgment is prayed for the $ 261 and interest. Judgment going against defendant in the justice's court, he appealed to the circuit court. On a trial before the court, a jury having been waived, these facts were developed: Plaintiff, preliminary to the trial, stated that he had the bonds in court and tendered them to defendant in open court. Tender does not appear to have been accepted. Being sworn as a witness in his own behalf, plaintiff offered in evidence the files of the case in the course of which the bonds had come into his possession by order of the court as commissioner. The abstract states that the files themselves were offered in evidence and the bill of exceptions calls for their insertion, but they are not in the abstract. Sufficient, however, appears in the abstract to show beyond controversy what these files contain, so far as is necessary to understand the facts in this case. Plaintiff testified with these files before him, that he had offered these bonds for sale on the date set out in the petition in this case and that at the sale the defendant Haas was the highest and best bidder for them at the price set out in the petition here filed. Plaintiff further testified that the sale was made and he had so announced it at the time, subject to the approval of the court. After bidding off the bonds defendant deposited $ 15 with him and he reported the sale to the court and it was approved. Thereupon he notified defendant, who declined to complete the purchase and pay the balance, tendered the bonds to defendant and demanded the money. He refused to receive the bonds or to pay the money and it had never been paid. The balance due and unpaid is $ 261. On cross-examination plaintiff stated that while he could not say who all were present at that sale, he remembered defendant being present and also Mr. Denvir. He first read the advertisement and then called for bids and there were two bidders, Mr. Denvir and defendant, and the defendant's bid was the last and highest; that he struck the bonds off to Mr. Haas and asked him (Haas) who was the purchaser. Haas said "G. F. McLain;" that thereupon he made his report to the court and that report set out that the sale was to G. F. McLain for the price named. Plaintiff further testified that after the approval of the sale he went to Mr. McLain, who repudiated any interest in the matter, said he knew nothing about it, never authorized Haas to use his name, never put up the $ 15 that was bid; that Mr. Haas was not his agent in the matter; that thereupon he (plaintiff) went to Haas and made a demand upon him and he refused to take the bonds. He repeated that when the bonds were knocked down and Haas was asked for the name of the purchaser, he gave the name of G. F. McLain as the purchaser; Haas said he bought them for G. F. McLain. He did not say that he was buying them for himself. All that occurred was that witness asked him who was the purchaser and he said "G. F. McLain." On re-direct examination plaintiff was asked when defendant bid on the bonds, whether he bid as purchaser himself or as representing someone else, and witness answered, "well, there was nothing said about representing anyone until I asked for the name of the purchaser." That was after the bidding was closed and after he had accepted the bid made by defendant. Plaintiff then put Mr. McLain on the stand as a witness, but on the suggestion of the court that Mr. McLain should be called in rebuttal and not in chief, which the court suggested after Mr. McLain had testified, plaintiff withdrew him. Plaintiff thereupon resting, defendant was examined as a witness in his own behalf. He testified that he appeared at the sale of these bonds and that to the best of his recollection he bid on the bonds and they were knocked down to him; that plaintiff, apparently acting as auctioneer, then asked him for whom the bonds were bought and defendant said that he had bought them for G. F. McLain. Defendant's counsel then asked witness for whom he had appeared at that sale. He answered that he appeared for G.F.McLain. Upon counsel for plaintiff objecting, on the ground that agency could not be proved by the testimony of the agent himself, the court sustained the objection, saying: "Can't prove agency by the agent himself." Exception was duly saved to this ruling of the court. Witness was asked by the court how much he had paid down at the time of the sale and he said that he had heard the testimony about his having paid $ 15, but the matter had gone out of his mind and that without referring to books and papers in his office, he could not testify from personal recollection, but he had no doubt that the amount previously testified, namely, fifteen dollars, had been paid by him. He further stated that as a matter of fact he did not know the amount of the purchase price until he heard the petition in this case read in court; had entirely forgotten the details of the transaction as to how the payment was made or the amount of the bid. He was certain, however, that he gave the name of Mr. McLain as the purchaser, and that he paid the $ 15 or whatever the amount was by check. Whether it was his own check or not he could not say, but it was not McLain's check. Said that he could answer these matters if he was allowed to refer to his books. He was then asked if he had any conversation with Mr. McLain before going to the sale and he said he had; that his recollection of the matter was that he "stepped into McLain's office the morning of the sale and told McLain he would buy the bonds for him and he asked if it was all right and I told him it was." On cross-examination he stated that McLain had not furnished him the $ 15; that Mr. McLain did not have the money at that time. This is all the testimony on the part of the defendant. Whereupon Mr. McLain was put on the witness stand by plaintiff in rebuttal, and he was asked if he had heard the testimony of Mr. Haas. He said he had and on being asked to state whether or not the conversation which defendant had narrated occurred prior to the sale of the bonds, he answered, After the sale was made, witness testified, Haas came back and told him that he had used his (McLain's) name. Had not had any conversation previous to the sale of the bonds with Haas; in fact does not now know what the bonds are. Haas had not said anything to him as to whether or not he (McLain) should pay for the bonds; he (Haas) bought them for himself.
This was all the testimony in the case. The court found for plaintiff, and defendant, after an unsuccessful motion for new trial, perfected...
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