Albert v. Seiler

• Decision Date: 22 May 1888
• Parties: SEBASTIAN ALBERT, Appellant, v. WENDELL SEILER, Respondent.
• Court: Missouri Court of Appeals

31 Mo.App. 247

SEBASTIAN ALBERT, Appellant, v. WENDELL SEILER, Respondent.

Court of Appeals of Missouri, St. Louis.

May 22, 1888

Appeal from the Bollinger Circuit Court, HON. JAMES D. FOX, Judge.

Affirmed.

SAM. M. GREEN, for the appellant: The instructions numbered one to six prayed by plaintiff were improperly refused. Taken in their entirety, they fairly presented the law of the whole case, were clear and confined to the contract sued on, and were based on the evidence adduced at the trial. Talbot v. Means, 21 Mo. 427; Thomas v. Babb, 45 Mo 384; McKeon v. Railroad, 43 Mo. 405; Glass v Gelvin, 80 Mo. 297; Livingston v. Ins. Co., 7 Cranch 506, 544; Jarret v. Morton, 44 Mo. 275; Mellon v. Smith, 65 Mo. 315; Story on Contracts [3 Ed.] sec. 844 a; 2 Parsons on Contracts [6 Ed.] sec 679. Even in a case of fraud, which is neither charged nor proved in this case, the parties must be placed in statu quo. Cahn v. Reed, 18 Mo. 116; Pearsel v. Chapin, 44 Pa.St. 9; Estes v. Reynolds, 75 Mo. 563. There was no time named in contract; if agreed on, it should have been incorporated in it. Smith v. Shell, 82 Mo. 215. And there was no proof of any modification of the contract on a new consideration which would be necessary to authorize instructions on specific articles and time. Henning v. Ins. Co., 47 Mo. 425. A written contract supersedes a prior verbal agreement concerning the same matter. Hager v. Hager, 71 Mo. 610; Chrisman v. Hodges, 75 Mo. 413. Instructions numbered two and three given by the court for plaintiff, as well as those given for defendant numbered one, three, four, five, and seven, are objectionable for the same reasons, and tend to confuse the jury as to time of delivery, not mentioned in contract, and notes not admitted in evidence; and are inconsistent with instructions as a whole. Donahoe v. Railroad, 83 Mo. 560; Chouteau v. Iron Co., 82 Mo. 73; Greer v. Parker, 85 Mo. 107. The other instructions, numbered two and eight, given for defendant should not have been given, because, in effect, they make a contract for the parties which they never made. The rule is, that when a written contract is made, everything is incorporated therein. Hager v. Hager, 71 Mo. 610; Chrisman v. Hodges, 75 Mo. 413. These instructions confined the case within certain limits and are inconsistent with others given. They should be predicated on the whole evidence. Mansur v. Botts, 30 Mo. 657; Sheedy v. Streeter, 70 Mo. 679. Instructions should be clear and consistent as a whole, otherwise they are calculated to mislead. One instruction cannot cure the defects in another. Henschen v. O'Bannon, 56 Mo. 280; Price v. Railroad, 77 Mo. 508; Lampert v. Gas Co., 12 Mo.App. 576; Stevenson v. Hancock, 72 Mo. 612. Contradictory instructions multiply the evils in both and correct neither. State v. Nauert, 2 Mo.App. 295. An erroneous instruction is not cured by one given to the other party. Goetz v. Railroad, 50 Mo. 472. These instructions were clearly repugnant and were error. Frederick v. Allgaier, 88 Mo. 598. These instructions singled out particular facts (governors, pump, lower first joint, belting, concave, new straw carrier) which were not conclusive by the evidence, nor shown to be in the contract, and emphasized them, which was manifest error. Koenig v. Life Association, 3 Mo.App. 596; Siegrist v. Arnot, 10 Mo.App. 197; Kendig v. Railroad, 79 Mo. 207; Jamison v. Carroll, 5 Mo.App. 598; Ehrlich v. Ins. Co., 15 Mo.App. 579; Clay v. Railroad, 17 Mo.App. 629; Schaefer v. Leahy, 21 Mo.App. 110; Weil v. Schwartz, 21 Mo.App. 372; Judd v. Railroad, 53 Mo. 56; Hackman v. Maguire, 20 Mo.App. 286. The motion for a new trial complied with the requirements of the statute. Rev. Stat., sec. 3704. The weight of the evidence was greatly against the verdict, and, in view of the conflicting instructions, leads to the conviction that there were prejudice and gross ignorance on the part of the jury. Taylor v. Fox, 16 Mo.App. 527; Lionberger v. Pohlman, 16 Mo.App. 392. The evidence made a clear case for plaintiff, and a new trial should have been awarded. Borgraefe v. Knights of Honor, 22 Mo.App. 127. The newly-discovered evidence was not cumulative, but material, and would have changed the result. If material, a new trial should have been given. State v. Locke, 58 Mo. 107; 26 Mo. 603. The surprise was as to facts. There was no element of neglect, as to the last moment the plaintiff was expected to arrive, but was sick and could not come. His testimony was necessary in addition to his deposition.

J. W. LIMBAUGH, for the respondents: The court properly refused the instructions asked by appellant. Appellant's instructions numbered one and two are based upon the theory that the property in the machinery passed to respondents on the execution of the contract. Such is not the law as applicable to this case. The property does not pass absolutely unless the sale be completed, and it is not completed until the happening of any event expressly provided for, or so long as anything remains to be done to the thing sold to put it in a condition for delivery, or in a deliverable state. 1 Parsons Cont. [[[[[[[6 Ed.] 527; Benjamin on Sales [2 Am. Ed.] secs. 311, 318, 319, 320, 335; Lingham v. Eggleston, 27 Mich. 324; S. T. & . C. P. Co. v. Stannard, 44 Mo. 71; Ober v. Carson, 62 Mo. 209. There was no error in refusing instructions numbered three and five on the part of appellant. The abstract legal propositions stated therein are not applicable to the facts in this case. Longuemore v. Busby, 56 Mo. 540; Shaffner v. Leahy, 21 Mo.App. 110. The fourth instruction asked by appellant is not the law of the case. Unless he first shows performance of all the conditions precedent on his part he is not entitled to recover, and the amount of his expenditures of money in repairs is immaterial, and can form no basis of damages, unless he has put the property in a condition in which, under the terms of the contract, it was the duty of respondents to accept it. Monks v. Miller, 13 Mo.App. 363; Turner v. Mellier, 59 Mo. 526; Larimore v. Tyler, 88 Mo. 661. There was no evidence to base the sixth instruction on, and it was righlty refused. Givens v. Van Studiford, 4 Mo.App. 499; Willis v. Stephens, 24 Mo.App. 494. When a contract contains various mutual stipulations, neither party can recover for a breach of a covenant in his favor without proving the performance of all acts, on his part, which by the contract are conditions precedent to the obligation of defendant. Drury v. Kile, 16 Mo. 450; Eyerman v. Cem. Ass'n, 61 Mo. 489; Yates v. Ballentine, 56 Mo. 530; Turner v. Mellier, 59 Mo. 526; 2 Parsons Cont. [6 Ed.] 520, 532; Benjamin on Sales [2 Am. Ed.] sec. 318; Lewis v. Ins. Co., 61 Mo. 534; Haynes v. Church, 12 Mo.App. 536. Respondents' instruction number five correctly declares the law as shown by authorities hereinbefore cited. 1 Parsons Cont. [6 Ed.] 527; Benjamin on Sales [2 Am. Ed.] secs. 311, 318, 319, 320, 335; Lingham v. Egglestone, 27 Mich. 324; Ober v. Carson, 62 Mo. 209; S. F. & C. P. Co. v. Stannard, 44 Mo. 71. Respondents' instruction number six is a statement of an elementary proposition of law, and has so long been supported in this state that it would seem superfluous to cite authorities; but see, Davis v. Railroad, 13 Mo.App. 449; Berry v. Wilson, 64 Mo. 164; Cooper v. Johnson, 81 Mo. 513. The allegation of the discovery of new evidence is not supported by affidavit, and should not be considered. State v. McLaughlin, 27 Mo. 111; Culbertson v. Hill, 87 Mo. 553. The evidence alleged to be discovered is only cumulative and is no ground for a new trial. Roach v. Colburn, 76 Mo. 653; Snyder v. Burnham, 77 Mo. 52; Culbertson v. Hill, 87 Mo. 553; Stone v. Spencer, 77 Mo. 356. In this matter appellant has not complied with the requirements of the law, and his application was rightly overruled. Shaw v. Busch, 58 Mo. 107; Cook v. Railroad, 56 Mo. 380; Boggs v. Lynch, 22 Mo. 563. The deposition of appellant was taken after the filing of the petition and answer on which the case was tried. Albert then knew the issues in the suit and was competent to testify as to the facts involved therein. His failure to testify to the whole case as made by the pleadings cannot now be urged as ground for new trial nor for error. Neither can he now be permitted to say he was surprised at the testimony of respondents. Their testimony was in support of their answer, and could not be a surprise to appellant. " A party cannot be surprised, in its legal meaning, that his adversary introduced testimony in support of the issues made by the pleadings. The general rule is that each party must understand his case and come prepared to meet the case made by his adversary." Bragg v. City, 17 Mo.App. 221; Workman v. Taylor, 27 Mo.App. 550. Plaintiff should have taken a nonsuit and sued again, or asked postponement till he could produce countervailing proof. Savoni v. Brashear, 46 Mo. 345; Bragg v. City, 17 Mo.App. 221. The trial court in its sound discretion determined the motion for new trial in favor of defendants. This court will not interfere with the action of the lower court. Eidelmiller v. Kump, 61 Mo 340; Cook v. Railroad, 56 Mo. 380. The questions of fact in this case were submitted to a jury and by them under the evidence adduced, were determined in favor of defendants. This court will not disturb such finding when there is any evidence to support it. Faugman v. Husey, 43 Mo. 122; Longuemore v. Busby, 56 Mo. 540; Norton v. Moberly, 18 Mo.App. 457; Foundry v. McCann, 68 Mo. 195.

OPINION

PEERS J.

This action was commenced in the Cape Girardeau court of common pleas in September, 1884, upon the following written instrument:

" Cape Girardeau, Mo., July 16, 1884. We have this day bought of S. Albert, Cape Girardeau, Missouri, one

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