Oglebay v. Corby

• Decision Date: 12 November 1888
• Parties: OGLEBAY v. CORBY et al.
• Court: Missouri Supreme Court

9 S.W. 584

96 Mo. 285

OGLEBAY v. CORBY et al.

Supreme Court of Missouri.

November 12, 1888.

1. APPEAL — REVIEW — WEIGHT OF EVIDENCE.

Where there is evidence to support a verdict, it will not be disturbed where there is nothing to show that it was the result of partiality, passion, or prejudice.

2. SALE — ACTION FOR PRICE — WRITTEN CONTRACT.

In an action for the price of property sold, the court refused to charge the jury that if they believed the property was bought by M. as agent for the defendants, and that such authority was in writing, then the burden was on plaintiff to show that defendants signed such writing, and what the contents were, and that, on failure of such proof, or if, on the whole testimony, the contents were in doubt, they should find for defendants. Held no error, in view of the evidence that the writing had been procured of plaintiff by defendants' agent, and afterwards by them destroyed.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Action by James H. Oglebay against Joseph A. Corby, Anton Klos, G. J. Englehart, J. T. Berghoff, and J. A. Johnston, to recover the purchase price of four Herdic coaches, purchased by E. F. Mitchell, as agent for defendants. Judgment was rendered for plaintiff, and defendants appeal.

Karnes & Ess, for appellants. C. O. Tichenor, for respondent.

NORTON, C. J.

This action is to recover the sum of $2,484.40, for four Herdic coaches, alleged to have been sold and delivered to defendants on the 15th July, 1881. Defendants, in their answer, set up that the sale and purchase of said coaches was made in view of a corporation thereafter to be formed, and which was in fact organized and incorporated on the 17th August, 1881. It avers that on or about the 12th of July, 1881, defendants entered into a contract in writing with plaintiff, whereby they promised and agreed to become responsible to plaintiff in proportion to the number of shares of the capital stock to be held by each for the price of said coaches, in the event that said company should not be incorporated, but that, if it should become incorporated, then and in that event defendants should be and were discharged from all further liability upon or by reason of their promise and agreement in said writing contained, as aforesaid, and from all responsibility for the purchase money for said coaches, which should thereupon become the debt of the said company so to be formed as aforesaid; that said company was afterwards, to-wit, on the 17th of August, 1881, duly incorporated for the purpose, and received and accepted said coaches, pursuant to the purposes of its incorporation, and assumed the payment of the purchase money therefor. It is further averred that after the organization of said company the said corporation, by its directors, requested plaintiff to extend the time of payment for said coaches 60 days, in consideration of their agreement to pay 6 per cent. interest, to which plaintiff assented, and disclaimed all right of action against defendants by reason of said writing or the sale of said coaches, and said instrument of writing was thereupon destroyed. This answer was denied by replication, and on the trial of the cause before the court without the intervention of a jury judgment was rendered for the plaintiff, from...