Barnes v. Childers

• Decision Date: 08 January 1923
• Docket Number: No. 14561.,14561.
• Citation: 246 S.W. 342
• Parties: BARNES v. CHILDERS,
• Court: Missouri Court of Appeals

246 S.W. 342

BARNES v. CHILDERS,

No. 14561.

Kansas City Court of Appeals. Missouri.

January 8, 1923.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

"Not to be officially published."

Action for rent by Charles S. Barnes against A. C. Childers. From a judgment sustaining plaintiff's motion for a new trial after verdict for defendant, defendant appeals. Reversed and remanded with directions to reinstate the verdict

John C. Leopard & Son, of Gallatin, and Garland Wilson, of Bethany, for appellant.

Frisby & Frisby and Randall Wilson, all of Bethany, and Dudley & Brandon, of Gallatin, for respondent.

BLAND, J.

This is an action for rent. There was a verdict for the defendant, but the trial court sustained plaintiff's motion for a new trial. Defendant has appealed.

The facts show that plaintiff owned a farm near Bethany, Mo., in Harrison county. In the month of February, 1920, he entered into a verbal agreement with the defendant to rent the farm from the latter for one year, beginning March 1, 1920, for $1,400 cash rent. It was understood that a lease and note were to be drawn and signed, but, on account of the sickness of plaintiff, and as a result of his being busily engaged at his store after he recovered, the' lease and note were not signed. It was understood, according to plaintiff's testimony, that the note should become due on December 25, 1920, but according to defendant it was to fall due on January 1, 1921. In September, 1920, plaintiff went to the farm for the purpose of getting the note signed, but defendant was absent. Plaintiff testified that he did not see defendant again until the 28th day of December, when he again visited the farm, and there talked with the defendant, and attempted to collect the rent, but that defendant claimed that he had already paid plaintiff the rent in October, and refused to pay, whereupon this suit was brought.

The testimony of the defendant was that a few days prior to the 6th or 7th of October, at which time he claimed plaintiff was at the farm, and received the money in settlement of the rent, his brother paid him a note in the sum of $1,400 and that this money was paid in bills. When plaintiff came out on the 6th or 7th day of October he brought a note for defendant to sign for the rent. Defendant offered to pay the rent in cash at that time if plaintiff would discount it $50. This proposition was accepted, and thereupon defendant paid plaintiff the sum of $1,350. Defendant obtained this money through his wife from a commode drawer where it had been placed for security at the time the money was paid by defendant's brother to him.

Defendant testified that the money was paid by his brother in the presence of Goldie Devers. Devers testified that at the time claimed by the defendant he heard defendant and his brother talking about a note being due from the brother to defendant, and that defendant went to the house to secure the note, and came back to the barn where the transaction was had, and delivered the note to the brother, and the brother paid defendant money; that he did not know how much money was paid, but that he saw some bills counted out. He also testified that he talked to plaintiff some time before the trial, and that plaintiff told him that he was at the farm at the time defendant claimed that he paid plaintiff the $1,350.

The motion for a new trial is as follows:

"(1) Because the court erred in refusing plaintiff to introduce witnesses to prove his good reputation in the neighborhood in which he resided for truth and veracity. And especially in refusing to permit the witness Myers, on part of the plaintiff, to testify and to prove the good character of the plaintiff in the neighborhood in which he resided for truth and veracity.

"(2) Because the court erred in giving instruction No. 1 and No. 2 on part of the defendant.

"(3) Because the court erred in modifying instructions No. 1 and No. 2 offered on part of the plaintiff, and in changing said instructions, and giving them to the jury for their consideration in a modified and changed condition, as made by the court.

"(4) Because upon the whole evidence in the case, the verdict should have been for the plaintiff.

"(5) Because, under the law and the creditable evidence offered in the case, the verdict should have been for the plaintiff.

"(6) Because the verdict in this case is against the law, against the evidence, and is not supported by the creditable evidence in the case.

"(7) Because the plaintiff and his attorneys were surprised by the testimony of the witness Goldie Devers, and by the fraud and deceit practiced by said Goldie Devers for and on behalf of the defendant and against the plaintiff, and contrary to the statements made as to his knowledge of the facts and as to his testimony that he would give upon the trial of said cause; and for the reasons that said Goldie Devers, as a witness for the plaintiff, deceived the plaintiff, and stated to the plaintiff a state of facts as to his knowledge of the money that the said defendant alleged he got of his brother, William 3. Childers, on a Sunday afternoon in the month of August or the first of September, different from what he testified to on the trial; and said Devers, by his fraud and deceit, and statements made at the time, led the plaintiff and his attorneys to believe that he would testify that on said Sunday afternoon, when he was present at the barn of the defendant Childers, and in the presence of William J. Childers that said William J. Childers only gave the said A. C. Childers in his presence an insignificant amount of money, not to exceed a few dollars, some three or four small bills, and that said William J. Childers did not pay to the...