19 S.W. 622 (Mo. 1892), Wolff v. Campbell

Citation:19 S.W. 622, 110 Mo. 114
Opinion Judge:Black, J.
Party Name:Wolff, Administratrix, v. Campbell, Appellant
Attorney:John H. Overall and Silver & Brown for appellant. Leverett Bell for respondent.
Case Date:May 23, 1892
Court:Supreme Court of Missouri
 
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Page 622

19 S.W. 622 (Mo. 1892)

110 Mo. 114

Wolff, Administratrix,

v.

Campbell, Appellant

Supreme Court of Missouri, First Division

May 23, 1892

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant, Judge.

Affirmed.

John H. Overall and Silver & Brown for appellant.

(1) The trial court committed error in sustaining motion of plaintiff to strike out parts of answer. Where a trade (such as brokers) has been long established, its customs become known to the law, and are judicially taken notice of as a matter of law. Blackburn on Contracts of Sale [2 Eng. Ed.] p. 59. "Parties who contract on a subject-matter, concerning which known usages prevail, by implication incorporate them into their agreements, if nothing is said to the contrary." Robinson v. United States, 13 Wall. 363; Fitzsimmons v. Brothers, 81 Mo. 37. (2) The court erred in directing a peremptory verdict for plaintiff. Bryan v. Wear, 4 Mo. 106; Vaulx v. Campbell, 8 Mo. 224; Gregory v. Chambers, 78 Mo. 294; Hemelreich v. Carlos, 24 Mo.App. 264; Const. 1875, art. 2, sec. 28; Com. v. Peter, 10 Metc. (Mass.) 262; Huffman v. State, 29 Ala. 40; Proffatt on Jury Trials, sec. 353. (3) The court should have given defendant's instruction, numbered 1, in the nature of a demurrer to the evidence. Trask, having purchased the note from defendant Campbell, stands in privity with him, and Trask's judgment against plaintiff (which was in evidence) protects defendant Campbell in this suit. (4) The court also erred in refusing to give instructions 2 and 3 as asked by defendant. They embodied elementary principles of law, and had support in the evidence. Authorities, passim. (5) The fourth instruction should have been given as asked by defendant. Story on Agency [9 Ed.] secs. 28, 106; Graham v. Fitch & Co., 8 Bush (Ky.) 12; Beebe v. Robert, 12 Wend. 413; S. C., 27 Am. Dec. 132.

Leverett Bell for respondent.

(1) The circuit court below committed no error in striking out parts of the answer. The allegations so stricken out had no application to the facts of the case, and constituted no defense to the action. (2) The circuit court below committed no error in directing a verdict for the plaintiff. An instruction to find for the plaintiff is proper when there is no evidence to support the defense. Klausman v. Schoulan, 32 Mo.App. 357. It is not error to instruct a jury directly upon the legal effect of facts which are admitted, or which are so clearly proven without countervailing testimony as to be beyond dispute. Slayback v. Gerckhardt, 1 Mo.App. 333; Hedgepeth v. Robertson, 18 Tex. 871; Oscanyon v. Arms Co., 103 U.S. 261. As it is clear upon the law and the facts that the judgment below was for the right party, it will not be reversed. Fairbanks v. Long, 91 Mo. 628; Fortune v. Fife, 105 Mo. 433. (3) The circuit court below committed no error in refusing defendant's instructions 2, 3 and 4.

OPINION

[110 Mo. 116] Black, J.

Marcus A. Wolff brought this suit against James Campbell to recover $ 2,500 and interest. The facts, which are not disputed...

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