Schlicker v. Gordon

• Decision Date: 23 November 1885
• Citation: 19 Mo.App. 479
• Parties: AUGUST SCHLICKER, Respondent, v. C. M. GORDON ET AL., Appellants.
• Court: Kansas Court of Appeals

19 Mo.App. 479

AUGUST SCHLICKER, Respondent, v. C. M. GORDON ET AL., Appellants.

Court of Appeals of Missouri, Kansas City.

November 23, 1885

APPEAL from Moniteau Circuit Court, HON. E. L. EDWARDS, Judge.

Affirmed.

The facts are sufficiently stated in the opinion of the court. See, also, 74 Mo. 534.

L. F WOOD and SMITH & KRAUTHOFF, for the appellants.

I. The jurisdiction of the circuit court to hear and determine all questions arising on the motion for judgment in this case is well settled. Schlicker v. Gordon & Finke, 74 Mo. 534. Defendants were authorized to make any defence under the general denial which the facts in evidence justified. Wolf v. Schaeffer, 4 Mo.App. 367; Wheeler v Billings, 38 N.Y. 263; Bliss on Code Pleading, sect 327.

II. It is also well settled that whatever may be the form of the note, it may be shown who received the money, and who ought to pay it, without reference to the order of the names on it. It may be further shown who is, in fact, the real principal in the note. Garrett v. Ferguson, 1 Mo. 128; Scott v. Bailey, 23 Mo. 150; Coons v. Green, 9 Mo. 198; Bank v. Wright, 53 Mo. 153.

III. Plaintiff was a surety holding an indemnity which made him the real principal as to the defendants. Hence he could have no recourse as surety against Finke as principal. Whilton, Adm'r, v. Chapman, 13 Mo. 470; Cogswell v. Ruggles, 62 Ill. 401; Story on Eq. Jur. (12 Ed.) sect. 502; Parham v. Green, 64 N.C. 436; Pitman on Principal and Surety, 133.

IV. The instructions for plaintiff ignore the issues presented by defendants in the evidence. Instructions should embrace the whole of the issues for the defendant as well as for the plaintiff. Clark v. Hammerle, 27 Mo. 70; Fitzgerald v. Hayward, 50 Mo. 517; Gilson v. Ry. Co., 76 Mo. 282.

V. The judgment is against the evidence and should be reversed regardless of whether the law was properly declared or not. Hart v. Leavenworth, 11 Mo. 629; Robbins v. Phelps, 68 Mo. 100; Moore v. Hutchison, 69 Mo. 429.

VI. The court erred in the admission and exclusion of evidence, especially in its refusal to grant defendants permission to ask plaintiff in cross-examination, as to certain admissions, or statements on a former trial. Hays v. Walker, 2 Mo. 222; Peck v. Ritchey, 66 Mo. 114.

VII. On motion for re-hearing: As long ago as 1848 the right to grant a new trial where the verdict could not be upheld, applying the law to the facts proved was asserted by the supreme court, and the power rested " on the sole ground of the verdict being against the evidence. " Hart v. Leavenworth, 11 Mo. 629; Morris v. Barns, 35 Mo. 412; Harlan v. Ry. Co., 65 Mo. 22; Moore v. Hutchison, 69 Mo. 429; Henry v. Bell, 75 Mo. 194; Hacker v. Brown, 81 Mo. 68.

VIII. The ground of motion for new trial was that the " verdict is against the evidence," not against the " weight of the evidence," but all of it. In such case there is no evidence to support it. 3 Graham & Waterman New Trials, 1230; Burns v. Patrick, 27 Mo. 434.

EDMUND BURKE and DRAFFEN & WILLIAMS, for the respondent.

I. The question in this case is really as to the weight of evidence. The testimony was conflicting. This court will not undertake to weigh the evidence, especially when the case has been tried twice, and the plaintiff's version accepted as true on each occasion. Brown v. R. R. Co., 50 Mo. 461; Zalle v. Hilger, 3 Mo.App. 599; Crane v. Timberlake, 81 Mo. 431.

II. Precisely the same instructions were given for the plaintiff at the second trial, as upon the first. The only error mentioned by the supreme court, upon the former appeal, was the refusal of an instruction asked by defendants. This was cured on the second trial. Conroy v. Vulcan Iron Works, 75 Mo. 651.

III. The attention of the trial court was not called, by the motion for a new trial, to its action in the giving and refusing of instructions. Its action in that regard is not subject to review here. Griffith v. Regan, 79 Mo. 73; Acock v. Acock, 57 Mo. 154; Burnes v. Wheelan, 52 Mo. 520.

IV. The instructions submitted the case fairly to the jury. The jury could not have misunderstood them. There was no error in admitting the statements of Gordon as against himself. Finke might have limited the effect of it by proper instruction. Babb v. Ellis, 76 Mo. 459. Besides, there is testimony that Gordon was acting for Finke, as well as himself, and his declarations were competent upon that ground also. The evidence as to other transactions of same character offered, was irrelevant.

V. The refusal to permit evidence of statements at a former trial, was no prejudice to defendants. Simply asking the question was not sufficient. Besides, he swore to the same thing on this trial, and they had the benefit of the evidence.

VI. The plaintiff had no indemnity. The money was in defendant's hands. There was evidence tending to support plaintiff's theory of the case. This court will not interfere on the ground that the verdict is against the evidence. Schulenberg v. Conroy, 71 Mo. 414.

PHILIPS P. J.

I. This cause has been in the supreme court of this state on appeal taken by the defendants, and is reported in 74 Mo. 534. It appears from the opinion therein that the judgment was reversed solely on the ground of the error committed by the trial court in refusing a certain instruction asked by the defendants. On the re-trial of the case in the circuit court, this instruction, with those given on the former trial, was conceded to the defendants. On this trial, however, defendants requested other instructions, and the principal error complained of on this appeal is the imputed error of refusing one of said instructions.

But this question cannot be considered. It has been repeatedly held by the appellate courts of this state, that, in order to preserve such action of the trial court for review here, the party appealing must, in his motion for new trial, call the attention of the trial court to this specific error. Griffin v. Regan, 79 Mo. 73; Acock v. Acock, 57 Mo. 154.

The record before us wholly fails to show that the attention of the court was called to this error in the motion for new trial.

II. The case was submitted to a jury for trial. There was evidence tending to sustain the issues on the part of the plaintiff, and, it may be conceded, that, in our view, the weight of evidence tended to sustain the theory of the defence; but the jury, who are the sole judges of the weight of evidence, and the credibility of the witnesses, have believed the plaintiff's evidence, and discredited that of the defendants; with their conclusion, especially after two trials, in which the issues of fact were found for the plaintiff, we cannot interfere. Any other course would break down all the barriers which the wisdom of ages has established as safe and valuable between the province of the bench and the jury.

III. On the trial, evidence was introduced by plaintiff as to certain statements made by the defendant, Gordon, tending to show that he and Finke were the principals, and plaintiff was surety on the note in question. This evidence was objected to by defendant, Finke, on the ground that he was not present, and could not be bound by any statement or declarations of his co-defendant. The overruling of this objection is assigned for error. The statements of Gordon, one of the defendants, in an action where there might be, as in this, either a joint or several judgment, were certainly competent to bind him, and were admissible for that purpose. The objection of the defendant, Finke, was too broad, as it went to the exclusion of the statement for all purposes. If he wished to have its effect properly limited, he should have asked the court to do so by an appropriate instruction, which he did not do. Babb v. Ellis, 76 Mo. 460.

IV. At the trial, defendant sought to elicit from one of the witnesses the fact that defendants were sureties on other notes of the plaintiff, given, perhaps, to raise money in and about the prosecution of his contract for the erection of the building in question. I think this was rightly refused by the court. It tended to complicate the case with collateral issues, and, because if the defendants had been, or were, sureties for the plaintiff on other notes not connected with the one in controversy, and resting on entirely independent contracts, this could not legitimately aid the jury in determining the sole issue at trial, as to whether the relation of principal and surety existed, and, if so, who was principal and who was surety on this particular note. Such evidence was liable to do great mischief. The rule of safety in such cases is to adhere to the strict rule of evidence in order to avoid collateral issues, calculated to mislead the jury and prevent justice.

Especially cannot this avail the defendants when the record shows that they, in effect, had the full benefit of such proof through other sources at the trial. City of Linneus v. Dusky, ante p. ___; Carson v. Cummings, 69 Mo. 325.

V. On the cross-examination of the plaintiff, who testified in his own behalf, he was asked if he had not, on a former trial of this cause, testified to certain facts, seemingly in conflict with his present statements or attitude. The court sustained an objection interposed to this question by plaintiff's counsel, on the ground that defendant's counsel read the question from their notes of the evidence taken at the former trial. It was immaterial from what paper, or memoranda counsel drew the substance, or language of his question. He had a right to formulate it on any memorandum, or paper calculated to aid his memory as to its true import, or phraseology. But it occurs to me that it is remarkable, if the defendants attached any importance to the inquiry, that they did not...