Bailey v. Beasley

• Decision Date: 19 November 1888
• Parties: L. S. BAILEY, Respondent, v. G. W. BEASLEY, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 406

L. S. BAILEY, Respondent, v. G. W. BEASLEY, Appellant.

Court of Appeals of Missouri, Kansas City.

November 19, 1888

Appeal from Jasper Circuit Court. --HON. M. G. MCGREGOR, Judge.

REVERSED AND REMANDED.

The case is stated in the opinion.

Thomas & Hackney, for the appellant.

(1) Oral testimony as to the assignment of the account was inadmissible. Witness Bailey testified that the only assignment was in writing on the account, but this assignment was not introduced in evidence. While it may be true that no written assignment of an account is necessary in order to entitle the holder to sue in his own name, yet when there is a written assignment, that is the only competent evidence of such transfer. Gilmore v. Bangs, 55 Ga. 403; 1 Greenl. Ev. sec. 275, et seq. (2) The first instruction given at the instance of plaintiff is erroneous. It submitted to the jury an issue outside of and not raised by the pleadings. The two instructions given by the court of its own motion are erroneous for a like reason. The issues presented by the pleadings were whether defendant signed the order intending thereby to purchase the mill, pump and fixtures, or signed it under the supposition and with the understanding that he was simply giving the company a permit to erect their machinery on his farm as an advertisement, and the machinery was so erected. The instructions withdrew from the attention of the jury the real issues and authorized them to find for the plaintiff if they found that the defendant long after the erection of the mill as an advertisement promised to pay for it when he sold some cattle. " A court does not possess the power to change by instructions the issues which the pleadings present." Bank v Murdock, 62 Mo. 73, and cases cited; Bullene v. Smith, 73 Mo. 162; Cravens v. Gillilan, 73 Mo. 528; Glass v. Gelvin, 80 Mo. 297. (3) If the defendant signed the order under the circumstances set forth in the first instruction, as well as in the two instructions given on the court's own motion, then the order was utterly void, not voidable. Kerr on Fraud and Mistake [Am. Ed.] 49, 50. Being void it could not be subsequently confirmed, ratified or approved. McHugh v. County, 67 Pa.St. 391; S. C. 5 Am. Rep. 445; Duncan v. McCullough, 4 S. & R. 483; Chamberlain v. McClurg, 8 W. & S. 31, 36; Goepp's appeal, 3 Harris 428; Miller's appeal, 6 Casey 477; 1 Story Eq. Jur. [10 Ed.] sec. 345, note 2. Hence no recovery could be had on the order, and a subsequent promise of defendant to pay--even if pleaded. (4) The first instruction is erroneous for another reason. If the mill was erected as an advertisement, then the written order was absolutely void; and being so, it could not serve as a criterion by which to measure the damages. There was no evidence that the articles of which the mill was composed corresponded in value with the prices contained in the written order. (5) If the mill was erected on defendant's farm as an advertisement, then a simple oral promise by defendant, made (if at all) six months after the erection of the mill, to pay for it when he sold some cattle, would not constitute a valid contract. The value of the mill, if anything, was over thirty dollars. There was no memorandum, no part payment and no delivery and acceptance of the property. 1 Benj. on Sales [4 Ed.] sec. 173. (6) The evidence as to subsequent promise by defendant to pay for mill, was not objected to by defendant on the trial, because it was admissible in contradicting defendant's claim, that it was erected as an advertisement. But it could not be used for any other purpose, nor be made the basis of a right of recovery, nor considered in the light of a ratification-- and all this without being pleaded. (7) The instructions asked by defendant properly declared the law applicable to the issues presented by the pleadings and evidence in the case, and should have been given, and the court erred in refusing them, and also in refusing to grant defendant a new trial.

Phelps & Brown, for the respondent.

(1) The defendant's claim for a reversal in this case is based upon the assumption that a badly distorted abstract of the evidence in the case, and the citation of a vast number of authorities, many of which are not in point and have no earthly application to the principles involved, ought to convince this court that the court below erred in some respect, and if the trial court erred in any respect, no matter how trivial, or that the error was immaterial, or that it clearly appears from the record that the defendant was not prejudiced thereby, then the judgment should be reversed. The defendant sets forth in his assignment of errors five grounds upon which he relies for a reversal of the judgment of the court below. On examination, however, it will be found that they contain only two, viz., first, that the court erred in admitting parol evidence of the assignment or transfer of the account sued on to plaintiff; second, that the trial court erred in modifying the first and second instructions asked on behalf of defendant by adding the final words, " unless you believe that afterwards the defendant agreed to pay for said windmill." These points included all the others. (2) The plaintiff testified without objection that " he was the owner of the account in question, the same having been delivered to him in payment, etc.," this was sufficient. No formal or written assignment of an account is necessary. Our supreme court in the case of Smith v Sterritt, 24 Mo. 260, held that any action showing an intention to transfer to the parties interested is sufficient. This is manifestly the only just and equitable doctrine. As to the remaining contention of defendant's counsel that the court erred in modifying instructions numbered one and two, and giving them as modified on its own motion, it is sufficient to say that the issues were not changed thereby nor was any issue not involved in the pleadings raised. And the case of Bank v....