88 S.W. 53 (Mo. 1905), Harrison v. Lakenan

Citation:88 S.W. 53, 189 Mo. 581
Opinion Judge:MARSHALL, J.
Party Name:HARRISON v. LAKENAN et al., Appellants
Attorney:C. A. Barnes, George Robertson and F. R. Jesse for appellants. R. D. Rodgers and P.H. Cullen for respondent.
Case Date:June 15, 1905
Court:Supreme Court of Missouri

Page 53

88 S.W. 53 (Mo. 1905)

189 Mo. 581



LAKENAN et al., Appellants

Supreme Court of Missouri, First Division

June 15, 1905

Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.


C. A. Barnes, George Robertson and F. R. Jesse for appellants.

(1) The first count of the petition does not state a cause of action against a real estate broker -- no authority is alleged to collect the purchase money. Stewart v. Wood, 63 Mo. 252; Butler v. Donnan, 68 Mo. 298; Chambers v. Short, 79 Mo. 204; Smith v. Allen, 86 Mo. 178; 4 Am. and Eng. Ency. Law (2 Ed.), 965. (2) There was a complete variance between the allegations of the first count of the petition on which the case was tried and the proof, and the general and special demurrers or either should have been sustained. The contract of sale read in evidence signed by the defendants as plaintiff's agents shows that the money was to be paid plaintiff. The proof shows that the first check was drawn to defendants and the money collected by them, then turned over to plaintiff. If plaintiff had any cause of action against defendants it was for money had and received. Robbins v. Ins. Co., 12 Mo. 308; Chase & Son v. Mercantile Co., 63 Mo.App. 482; Gwyn v. Smurr, 101 Mo. 550. Plaintiff alleged a contract and there is a complete variance between that and his proof. McCormick Co. v. Railroad, 154 Mo. 191; Huston v. Taylor, 140 Mo. 252. (3) There was not one word of proof outside of the contract of September 11, 1897, that defendants were to have a commission of five per cent on the first thousand dollars and two and one-half per cent of each remaining thousand dollars of the purchase-price, and therefore there was a complete failure of proof. Defendants' demurrer should have been sustained. Chitty v. Railroad, 148 Mo. 64; Crawford v. Aultman, 139 Mo. 262; Thompson v. Irwin, 76 Mo.App.418. (4) Plaintiff's evidence was insufficient to support any cause of action. When there is no substantial evidence to support a verdict it will be set aside. Hewitt v. Steele, 136 Mo. 327; Payne v. Railroad, 136 Mo. 576. (5) The court erred in allowing the plaintiff to cross-examine the defendants as to the value of the land or as to their opinion as to the value of the land. Jones, Law of Evidence, secs. 136-139; Bates v. Forcht, 89 Mo. 121. (6) The court erred in permitting the cross-examination of defendant Lakenan as to the contents of certain letters and meaning of them and the intent of the writer, etc. Johnson County v. Wood, 84 Mo. 489; Hunt v. Hunter, 52 Mo.App. 263; Jones, Law of Evidence, sec. 838; State v. Gritzer, 134 Mo. 512; Madden v. Railroad, 50 Mo. 666. (7) There was no demand proven. The action could not be maintained until after demand made by the plaintiff upon defendants for the money retained. Mechem on Agency, sec. 1025; Beardslee v. Boyd, 37 Mo. 180; Cockerill v. Kirkpatrick, 9 Mo. 688; Evans v. King, 16 Mo. 525; Cooley v. Betts, 24 Wend. 203; 9 Am. and Eng. Ency. Law (2 Ed.), 208; Id. vol. 1, 1091; Id. vol. 12, 699. (8) Plaintiff's instruction 1 is error because it tells the jury that in determining the weight and credibility to be given to the testimony of any witness they should take into consideration the character of the witness. No testimony was offered affecting the character or reputation of any witness, and such an instruction is only permissible where the character of the witness has been attacked. 1 Wharton on Ev., sec. 564; State v. Hilsaback, 132 Mo. 348; Jones, Law of Evidence, secs. 156, 862; 5 Am. and Eng. Ency. Law (2 Ed.), 861; Alkire Grocer Co. v. Jugart, 78 Mo.App. 166; Gutzwiller v. Lockman, 23 Mo. 168; Rogers v. Troost, 51 Mo. 470; Dudley v. McCluer, 65 Mo. 241; Thompson on Trials, secs. 970, 971. (9) Plaintiff's instruction 3 is error because it tells the jury that the written matter of July 15, 1898, is of "no binding force or effect whatever upon the plaintiff unless the jury believe from the evidence that plaintiff was present in the office of the defendants at the time said matter under said date was written in said contract and authorized said matter to be written in said contract or agreed to or sanctioned the same after it was written and read over to him." If it had been agreed upon between plaintiff and defendants it was not necessary to read it over to him nor necessary that it should be written in his presence nor that he should have been in defendants' office when it was done. It was sufficient that the fact was agreed upon and written at any time either without or within his presence and whether it was read over to him after written or it would be good if made but not written. (10) Plaintiff's instruction 7 is error because it puts it into the power of the jury to pass upon the validity of the contract mentioned in this instruction when this action was not for the cancellation of the contract and had nothing whatever to do with the contract described in the instruction. If the contract were obtained under the hypothesis of this instruction, then only a court of equity would have the power to set it aside. Hancock v. Blackwell, 139 Mo. 440; Courtney v. Blackwell, 150 Mo. 245; Pomeroy, Eq. Juris., secs. 915, 1377. (11) The statement of plaintiff's attorney to the jury was unauthorized and based upon no testimony in the case, and was an attempt to mislead and prejudice the jury against the defendants without anything whatever to base it upon. Mahner v. Finck, 70 Mo.App. 380; State v. Jerguson, 152 Mo. 92; Evans v. Trenton, 112 Mo. 390; Thompson on Trials, secs. 963-976. (12) The verdict is the result of the passion and prejudice of the jury and partiality toward the plaintiff. The preponderance of the evidence is so strong against the verdict as to raise the presumption of prejudice and passion or partiality on the part of the jury. Snyder v. Railroad, 85 Mo.App. 498; Price v. Evans, 46 Mo. 396; Spohn v. Railroad, 87 Mo. 74; Walton v. Railroad, 49 Mo.App. 620; Empey v. Railroad, 45 Mo.App. 422; Garrett v. Greenwell, 92 Mo. 120; State v. Primm, 98 Mo. 368.

R. D. Rodgers and P.H. Cullen for respondent.

(1) The petition is not an action on a special contract, but is, as the statute prescribes, a plain and concise statement of the facts constituting a cause of action, based on the rule of law which authorizes a plaintiff to sue and recover from a defendant the amount of money belonging to plaintiff which the defendant has received for plaintiff's use. Johnson-Brinkman Co. v. Bank, 116 Mo. 567; Beal v. Bank, 79 Mo.App. 269; Winnigham v. Fancher, 52 Mo.App. 463; Clark v. Bank, 57 Mo.App. 285; 14 Ency. of Pl. and Pr., 53; Ingram v. Ashmore, 12 Mo. 574; Williams v. Railroad, 112 Mo. 468; Moore v. Gaus & Sons, 113 Mo. 107; Mansur v. Botts, 80 Mo. 657; Royce, Allen & Co. v. Oakes, 39 L.R.A. 845, 20 R. I. 418. (2) Before a litigant can complain of a variance between the allegation and the proof, he must object to the testimony when offered, on the distinct ground of a variance and make the statutory affidavit setting forth in what respect he has been misled, and this affidavit is the sole test of a materiality of the discrepancy between the allegata and probata. Failing to object and make the affidavit aforesaid, the point will not be considered on appeal. R.S. 1899, pp. 655, 666; Real Estate Co. v. Stead R. Co., 159 Mo. 562. (3) Before it can be held that there is a failure of proof the allegation of the cause of action to which the proof is directed must be unproved in its entire scope and meaning. The fact that it is unproved in some particular or particulars only, is not a failure of proof. Such is the rule expressed in the statute and accentuated by the decisions. R.S. 1899, sec. 798; Owens v. Railroad, 95 Mo. 169; Hartpence v. Rogers, 143 Mo. 632; Frederick v. Allgaier, 88 Mo. 598. (4) The rule that the proof must correspond to the allegations applies only to such allegations as are themselves material to the action. It does not apply to matters of inducement and in explanation. Bell v. Scott, 3 Mo. 212; Ward v. Steamboat, 7 Mo. 582; State v. Millsaps, 69 Mo. 359; Clements v. Malony, 55 Mo. 352; Campbell v. Wolf, 33 Mo. 459; Crawford v. Thoroughman, 13 Mo.App. 569. (5) A variance between the proof and immaterial allegations which may be stricken out as surplusage, without destroying or changing the legal effect of the remainder, is not fatal. State v. Jackson, 90 Mo. 156; State v. Hays, 36 Mo. 80; Hutchison v. Patrick, 3 Mo. 65; Ward v. Steamboat, 7 Mo. 582. (6) As regards the rule that the allegations and the proof must correspond, it is immaterial whether the contract alleged is express or implied. If the evidence of an implied promise shows the particular duty alleged, and, therefore, in legal effect, the same promise, there is no variance. Wheeler v. Reed, 36 Ill. 81; Potter v. Brown, 35 Mich. 274; Railroad v. McDonough, 21 Mich. 165; Nimm v. Towers, 23 S.W. 1117; Railroad v. Friedman, 146 Ill. 583. (7) Even if the defendants had no authority to collect the money, yet if, as a matter of fact, they did collect the money, the plaintiff has the right to waive the irregularity by which the money was paid to his agents and hold them for the amount they received. It is of no importance how the money came into defendants' hands, if plaintiff is legally entitled thereto. Clark v. Bank, 57 Mo.App. 285; Tanner v. Kellogg, 49 Mo. 118; Johnson-Brinkman Co. v. Bank, 116 Mo. 569; Hindmarch v. Hoffman, 4 L.R.A. 368; Lubert v. Chauviteau, 3 Cal. 458. (8) If plaintiff's theory of this case is true, viz: that defendants, while the agents of the plaintiff, changed the written contract between themselves and plaintiff, and retained nearly $ 5,000 belonging to plaintiff, the defendants are precluded from asserting any right under the original or altered contract, and their right to any commission has been forfeited by reason of their...

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