Buchanan v. Rechner

• Decision Date: 12 August 1933
• Docket Number: 30413
• Citation: 62 S.W.2d 1071,333 Mo. 634
• Parties: C. E. Buchanan v. Charles H. Rechner and Frank I. Buckingham, Appellants
• Court: Missouri Supreme Court

62 S.W.2d 1071

333 Mo. 634

C. E. Buchanan v. Charles H. Rechner and Frank I. Buckingham, Appellants

No. 30413

Supreme Court of Missouri

August 12, 1933

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Reversed and remanded (with directions).

Henry S. Conrad, L. E. Durham and Hale Houts for appellants.

(1) The court erred in not referring the case upon motion of the defendants. There was manifestly involved "the examination of a long account" on each side. Sec. 976 R. S. 1929; Creve Coeur Ice Co. v. Tamm, 138 Mo 390; Home Exchange Bank v. Coch, 32 S.W.2d 88; Bevin v. Powell, 83 Mo. 365; Small v. Hatch, 151 Mo. 306; McCormick v. St. Louis, 166 Mo. 337; Bank of Oak Ridge v. Duncan, 40 S.W.2d 658; State ex rel. v. Reynolds, 245 Mo. 702; Wentzville Tobacco Co. v. Walker, 123 Mo. 670; Third Natl. Bank v. Owen, 101 Mo. 558; Johnston v. Pump Co., 272 Mo. 423; St. Louis to Use v. Parker Washington Co., 271 Mo. 239; Rawleigh Medical Co. v. Woodward, 230 S.W. 648; Ajax Rubber Co. v. White, 216 Mo.App. 283; Natl. Union Fire Ins. Co. v. Nevils, 217 Mo.App. 643. (2) The court erred in submitting the case to the jury without an instruction submitting a state of fact and theory upon which plaintiff was entitled to recover, over the express objection of the defendants. Keehn v. Investment Co., 43 S.W.2d 422; Barr v. Baking Co., 41 S.W.2d 563; Sullivan v. Railway, 221 Mo. 697, 12 S.W.2d 740. (3) The court erred in refusing defendants' Instruction E. Regardless of any other issue, defendant Rechner was not liable if he did not participate in any wrongful appropriation of the note or the proceeds thereof. Murray v. Transit Co., 171 Mo. 191; Root v. Railroad, 237 Mo. 651. (4) The court erred in admission of evidence by way of impeachment of defendants. It had no such tendency and was purely prejudicial and improper. Shaefer v. Mo. Pac. Ry. Co., 98 Mo.App. 453; Shull v. Kallauner, 300 S.W. 554; State v. Tunnell, 296 S.W. 423; State v. Roberts, 278 S.W. 971; State v. Clark, 9 S.W.2d 635; State v. Grubb and Asher, 201 Mo. 585; People v. Weber, 149 Cal. 325. (5) The court erred in admitting evidence that plaintiff had been in bad health for some time. The evidence was incompetent for any purpose and was offered for the purpose of and necessarily had the effect of prejudicing the jury in plaintiff's favor. Dayharsh v. Railway, 103 Mo. 577; Dicken Bros. v. Ellison, 287 Mo. 154; Bequette v. Lead Co., 31 S.W.2d 580.

J. M. Johnson, C. W. Prince, James N. Beery and Walter A. Raymond for respondent.

(1) The court properly denied a reference. The action was in tort and did not involve an "examination of a long account." Natl. Bank of Commerce v. Laughlin, 305 Mo. 8, 264 S.W. 713; Elks Inv. Co. v. Jones, 187 S.W. 75; Smith v. Ohio Miller's Mut. Fire Ins. Co., 6 S.W.2d 920; Browning v. North Mo. Central Ry. Co., 284 Mo. 446, 224 S.W. 749; Reed v. Young, 248 Mo. 606, 154 S.W. 766; Klingenberg v. Davis, 268 S.W. 99. (2) The court committed no error in submitting the case to the jury, without instructions on plaintiff's side of the case. Keehn v. Investment Co., 43 S.W.2d 416; Winfield v. Wabash, 257 Mo. 347, 166 S.W. 1041; Hutchcraft v. Laclede Gas Light Co., 282 S.W. 44; Ternetz v. St. Louis Lime & Cement Co., 252 S.W. 70; Luikart v. Miller, 48 S.W.2d 867. (3) The court committed no error in refusing defendants' Instruction E. Dickey v. Adler, 143 Mo.App. 326, 127 S.W. 595; Michael-Swanson-Brady Produce Co. v. Railroad Co., 219 Mo.App. 419, 271 S.W. 855; Fitzwilliams v. Northwestern Trust Co., 10 S.W.2d 337; Leimkuehler v. Wessendorf, 18 S.W.2d 452. (4) The court committed no error in refusing defendants' requested Instruction M. (5) The court committed no error in refusing defendants' requested Instructions H, I, J and Q. Caldwell v. Ryan, 210 Mo. 17, 108 S.W. 536; Landers v. Schneider, 180 Mo.App. 49, 165 S.W. 873; Finney v. Raudabaugh, 182 Mo.App. 246, 168 S.W. 314. (6) The court did not commit reversible error in giving Instruction C-1. Hoytt v. Kansas City Stock Yards, 188 S.W. 109; Edwards v. Collins, 198 Mo.App. 569, 199 S.W. 582; Sterr v. Wells, 273 S.W. 1097; Faulkner v. Western Union Tel. Co., 13 S.W.2d 1092; Gorman v. Showcase Works Co., 19 S.W.2d 563; Niehaus v. Schultheis, 17 S.W.2d 604. (7) The court committed no error in admission of evidence by way of impeachment of defendants. Reynolds v. Davis, 303 Mo. 418, 260 S.W. 999; Ulrich v. Railroad Co., 281 Mo. 697, 220 S.W. 682; State v. Conley, 238 S.W. 806; State v. Gurnee, 274 S.W. 60; Kleckamp v. Lautenschlaeger, 305 Mo. 528, 266 S.W. 473; State v. Miller, 12 S.W.2d 42; State v. Harris, 22 S.W.2d 1051; State v. Wilson, 34 S.W.2d 101. (8) The court committed no error in admitting evidence plaintiff was in bad health. State v. McHugh, 155 Wash. 622, 285 P. 938; Fire Assn. of Philadelphia v. Oneida County Macaroni Co., 294 F. 639. (9) The verdict was not excessive. Frost v. Winston, 32 Mo. 495; In re Davis, Executor, 62 Mo. 454; Cruce v. Cruce, 81 Mo. 686; Bobb v. Bobb, 89 Mo. 421. (10) Plaintiff was entitled to a directed verdict, and defendants are therefore not entitled to take advantage of any error committed in the trial. Secs. 2840, 2844, R. S. 1929; Phillips v. Pulitzer Pub. Co., 238 S.W. 131; Kansas City Stock Yards Co. v. Fed. Grain Co., 279 S.W. 773; Grohman v. The Maccabees, 237 S.W. 878.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Defendants appeal from an adverse judgment in the sum of $ 18,155 upon the verdict of a jury in the Circuit Court of Jackson County at Kansas City.

I. The first complaint of appellants is that the court erred in overruling their application for an order of reference. The whole subject of reference is a matter of discretion. The trial court is not bound in any action at law to make a reference. [Fitzgerald v. Hayward, 50 Mo. 516; Home Exchange Bank of Jamesport v. Koch, 326 Mo. 369, 32 S.W.2d 86.] But the trial court's action is subject to review. [Creve Coeur Lake Ice Co. v. Tamm, 138 Mo. 385, 39 S.W. 791.] Whether the trial court abused its discretion in denying a reference should be decided from the pleadings as they were when appellants made application. [McCormick v. City of St. Louis, 166 Mo. 315, 65 S.W. 1038, l. c. 1044.]

The amended petition charged that on December 20, 1920, respondent was the owner of certain installment mortgage notes made by Charles T. and Anna B. Wyatt, on said date totaling $ 18,000, secured by a deed of trust on property located at 920 Paseo, Kansas City, Missouri, and bearing six per cent interest; that these notes were placed in the custody and keeping of appellants at that time to hold as security for money then owing to appellants by respondent and an additional sum about to be, and which was, loaned by appellants for the use of respondent in the purchase of the Paseo property and a contemporaneous sale thereof to said Charles T. Wyatt; that appellants collected the interest and installments on these notes as they became due until the amount owing by respondent to appellants was fully liquidated and satisfied, at which time respondent became entitled to possession of the notes. The amended petition further charged that appellant Buckingham acted as attorney and agent for respondent in that transaction and also acted as a holder in escrow of all the documents for all parties to the deal and that he connived and conspired with appellant Rechner to wrest from respondent said notes; that both appellants refused to disclose to respondent the amount collected on said notes and denied that respondent had any interest in the notes or in their proceeds, that the proceeds of the notes were collected and appropriated by appellants and that in September, 1922, appellants wrongfully and maliciously converted the notes and their proceeds to their own use. The value of the six notes was placed at $ 18,000, and actual damages in this amount were prayed. Punitive damages in the sum of $ 10,000 also were asked. The verdict of the jury did not allow any punitive damages.

Appellants by their amended answer admitted that there were delivered to them the promissory notes totaling $ 18,000 mentioned in the amended petition and that the interest of respondent in said notes and certain renewals of unpaid balances due thereon, made with the consent and approval of respondent, were held by appellants as security for certain obligations and debts of respondent then existing and thereafter created and that appellants fully discharged the duties devolved upon them in the matter of the disposition of the proceeds realized in the collection of the notes. After making a general denial of all allegations of the amended petition, not expressly admitted, appellants in their answer set up four set-offs against respondent's amended petition. The first item of set-off was a note for the principal sum of $ 460 dated May 27, 1923, executed by respondent to the order of appellant Rechner. A second item of set-off was a promissory note for the principal sum of $ 2,075 dated May 5, 1924, executed by respondent and another to the order of John Abrahams, and alleged to be owned by appellant Rechner. The third item of set-off was an indebtedness from respondent to appellant Rechner upon an open account in the sum of $ 825.27 as shown by an exhibited statement containing eleven items. The last set-off claimed was for $ 1,200 alleged to be due from respondent to appellant Buchanan, for services rendered in the sale of oil rights in certain lands in Kansas. Finally the answer averred that respondent agreed that appellants jointly or severally should pay each of the claims which the answer sought to set off against him from the proceeds realized by appellants on the six notes totaling $ 18,000 and the renewals thereof.

Responde...