Budd v. Hoffheimer

• Decision Date: 31 March 1873
• Parties: GEORGE K. BUDD, et al., Respondent, v. ISAAC HOFFHEIMER, Appellant.
• Court: Missouri Supreme Court

52 Mo. 297

GEORGE K. BUDD, et al., Respondent,

v.ISAAC HOFFHEIMER, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Slayback & Heaussler, for Appellant.

I. Evidence that may be a link in a chain of testimony, should not be excluded, although such evidence may not be sufficient of itself to establish such defense. (Platt Co. vs. Marshall, 10 Mo., 345; Lane vs. Kingsberry, 11 Mo., 402.)

II. Although the courts will not interfere with the verdicts of juries on the ground that they are against the weight of evidence, yet, when hard cases appear to rise under the operation of this rule, it must be satisfied that the instructions are entirely unexceptionable. (Carrol vs. Paul, 16 Mo., 226.)

III. Instructions which cover the whole case ought to be so framed as to meet the points raised by the evidence and pleadings on both sides. (Fitzgerald vs. Hayward, 50 Mo., 516.)

A jury is not obliged to take a judge's view of the evidence. Carrol vs. Paul, 16.Mo., 242.

Instructions must be so given, as substantially to embrace the whole point of the case presented, though this need not be in the words asked. (44 Mo., 91; 26 Mo., 523; 6 Mo., 267-279; 27 Mo., 26-55-70.)

Where there is the least evidence direct or inferential to support an issue, it is error to refuse instructions submitting the question raised to the jury; and it is equally erroneous to give instructions which withdraw such a point from the consideration of the jury, or which assume the facts to be proved. (34 Mo., 98, 461; 18 Mo., 170-171; 24 Mo., 223; 42 Mo., 60; 19 Mo., 360; 13 Mo., 80; 5 Mo., 110; 6 Mo., 64; 16 Mo., 496; Mead vs. Brotherton, 30 Mo., 201; Kinman vs. Cannefax, 34 Mo., 147; Bradford vs. Pearson, 12 Mo., 71; Flournoy vs. Andrews, 5 Mo., 513.)

Wm. B. Thompson, for Respondents.

VORIES, Judge, delivered the opinion of the court.

This action was brought in the St. Louis Circuit Court by respondents, who it seems were brokers and followed the business of procuring loans of money for such persons as applied to them for said purpose, for a commission to be paid therefor.

It is charged in the petition, that on the 8th of April, 1869, the appellant by a writing filed with the petition, contracted with the respondent to procure for him, $20,000 on the real estate of appellant, situate on Main and Second Streets in the City of St. Louis, upon which was situate at the time a three and one-half story brick distillery, &c., also another lot of ground named in the petition; that the appellant by said agreement agreed to pay respondents for procuring said loan a commission of ten per cent. on said sum of $20,000; that by said agreement appellant contracted to pay said commission of ten per cent. on said sum of $20,000, if from any circumstances the money was not taken by him within three days after he had been notified by the respondents that the loan was granted; that appellant was notified that said loan had been granted on his said application upon the property offered by said appellant as security therefor, and upon the terms agreed on; that appellant did not take said loan of $20,000 in the time agreed on; that he took and received $2,500 of said sum and paid the commission therefor, but then refused to take any further sum thereof, and has never taken the same nor paid the commission therefor; that the sum of $1,750 is due the respondents therefor, for which judgment is asked.

The defendant in his answer admitted that he had signed or executed the paper filed with the petition, but he denied that he by such paper contracted or agreed with the plaintiff to procure for him said sum of money on the real estate named in the petition, or that the said paper had in writing in the body thereof the provisions in reference thereto, as it now appears, when he signed the same; he denied all of the other material allegations in the petition, except that he never did receive said loan or money.

The answer then states the facts to be, that on or about the 8th day of April, 1869, he desired to make a loan for $5,000 upon some property he owned on Chouteau Avenue in the City of St. Louis, and applied to one J. Hartman (who negotiated loans) for a loan of said sum; that said Hartman agreed to obtain said loan for the usual commissions, that at said time he informed said Hartman, that he might purchase the property set out in plaintiffs' petition, situate on Main and Second Streets, and upon which the distillery was situated, and that if he should make said purchase he would like to obtain a loan of $20,000 on the property so to be purchased; that Hartman then requested defendant to sign the papers filed with plaintiffs' petition; that the said papers were then in blanks in their printed form, not filled up with any writing as at present, and that he had a distinct understanding with Hartman before signing the papers, that he did not own the property on Main and Second Streets, and did not want and would not take said loan of $20,000, unless he made a purchase of said property, which he avers that he never did, and therefore never desired said loan.

The answer further states that the defendant afterwards made an arrangement by which he procured the loan of five thousand dollars referred to, by giving as security a lien on property in addition to the property first named on Chouteau Avenue, and that the loan so obtained is what plaintiff refers to as being an acceptance of $2,500 of said sum of $20,000; that defendant never purchased the said property on Main Street; that no loan was ever made to him, nor was any loan offered to him as set up in the petition, nor was his agreement filed with the petition ever to have any force or effect until he did make such purchase; that the said plaintiffs were fully aware and informed of the agreement between defendant and Hartman when they received said contract or paper filed with their petition, and well knew that defendant signed the same in blank, &c.

The plaintiffs and respondents filed a replication, denying in general terms the affirmative allegations set up in the answer. A trial was had in the Circuit Court, where the respondents recovered a judgment for the full amount of the demand in their petition. The defendant filed a motion for new trial, which being overruled he excepted and appealed to the court at General Term where the judgment at Special Term was affirmed, and from which appellant appealed to this court.

The bill of exceptions shows that the evidence on the trial was conflicting. The testimony of one of the plaintiffs and Hartman, their witness, tending to prove the allegations of plaintiff's petition, while the evidence of appellant and Campbell, his witness, tended to prove the facts constituting the defendant's defense and to disprove and contradict the evidence on the part of the plaintiff.

The defendant, while he was cross-examining the witness Hartman (who was introduced by plaintiffs and was the active agent in procuring the contract sued on), asked said witness the following questions:

“Q. Was it known to you and to Mr. Budd at the time this application was made for the loan of $20,000, that Mr. Hoffheimer did not claim to be the owner in fee simple of that distillery, and the ground that it was on?” This question was objected to by the plaintiff, and the objection sustained by the court, and the answer to the question excluded, to which ruling the defendant excepted.

The defendant then asked said witness this further question: “Q. Was not the fact communicated to the plaintiffs in this case before this application was signed, that the defendant in this case was not the owner of the distillery?” This question was also objected to, and the objection sustained, and the defendant excepted. After the evidence was closed the court (notwithstanding the objection of the defendant) at the request of the plaintiffs, together with other instructions, instructed the jury as follows:

1st. “The jury are bound to find their verdict for the plaintiffs for the sum of seventeen hundred and fifty dollars and interest at the rate of six per cent. per annum from the date of the institution of this suit, if they believe from the evidence, that the plaintiffs procured a loan of twenty thousand dollars for defendant, and so notified the defendant, although the defendant may not have availed himself of said loan so procured, unless the jury find from the evidence, that the contract marked Exhibit “A” was signed in blank by the defendant and afwards filled up, the burden of proving which to the satisfaction of the jury is upon the defendant.”

2nd. “The jury are instructed, that the burden of proof lies upon the defendant to show, that the contract sued on was executed by him under an agreement made with plaintiff at the time, that he was not the owner of the property described in the contract marked Exhibit “A” on Second and Main Streets, and that such contract was not to be enforced, if he did not purchase the property, and that the agreement was made at the time of executing the contract.”

The defendant at the time excepted to the opinion of the court in...