Buehler v. Baum, 17488.

• Decision Date: 21 May 1934
• Docket Number: No. 17488.,17488.
• Parties: BUEHLER v. BAUM et al.
• Court: Missouri Court of Appeals

71 S.W.2d 851

BUEHLER v. BAUM et al.

No. 17488.

Kansas City Court of Appeals. Missouri.

May 21, 1934.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

"Not to be reported in State Reports."

Action by Charles G. Buehler against Eugene Baum and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

Alva F. Lindsay and Silverman & Strop, all of St. Joseph, for appellant.

King & Sherwood, of St. Joseph, for respondents.

REYNOLDS, Commissioner.

Appellant filed this suit on the 5th day of June, 1931, in the circuit court of Buchanan county against respondents for the balance of $1,319.45 claimed under contract with them on account of having furnished and procured the conveyance by deed to respondents of a certain lot and tract of ground and for materials, labor, and services furnished and performed in the erection and construction of a certain house thereon.

The petition in substance charges that appellant, at all times involved, was engaged in business as a builder of houses and that respondents were husband and wife; that, during the year of 1930, appellant entered into a contract with respondents by which it was agreed that he should furnish to respondents a deed to a certain tract of land and should construct thereon for respondents a private residence and should furnish all materials, labor, and services necessary therefor and should supervise the construction thereof in accordance with certain plans agreed upon; that respondents should pay to appellant the actual cost of said tract of land and of the material, labor, and services furnished and, in addition thereto, 6 per cent. of the actual cost of such material, labor, and services; that appellant had performed such agreement upon his part and had become obligated on account thereof in the sum of $10,376.09 for the actual cost of said tract of ground and the material, labor, and services furnished in the erection and construction of said house, for which respondents became liable to him; that, in addition to said amount, the respondents became liable to him for his personal services in the further sum of 6 per cent. on said amount of $10,376.09, which, added to the $10,376.09, made a total sum of $10,878.65, for which respondents became and were liable to him; that respondents had paid him the sum of $9,559.20 which had been credited upon said total amount, leaving the balance sued for due appellant.

The petition prayed for judgment for said balance.

The respondents answered by way of general denial. Upon trial had before the court and a jury at the May term, 1931, on the 25th day of June, 1931, a verdict was returned in favor of respondents, upon which judgment for respondents was duly entered.

From such judgment, after an unsuccessful motion for a new trial, appellant prosecutes this appeal.

There was substantial evidence in the record tending to show that appellant procured and caused to be conveyed by deed to respondents the lot or tract of ground as claimed, and that appellant built and constructed the private residence thereon and supervised the building of the same and furnished the necessary materials, labor, and service therefor, as agreed, at a total cost incurred by him of $10,376.09, for the payment of which to him, together with 6 per cent. thereof added, the respondents became obligated. It appears that, upon the completion of the residence, the respondents accepted the same, together with the tract of ground upon which it was built, and took possession thereof, in which possesion they had continued to the time of the trial.

There was evidence upon the part of appellant tending to show that the total payments made by respondents to him on account of their obligation amounted in the aggregate to $9,559.20, and that the balance of $1,319.45 was still due him, while, upon the other hand, there was evidence upon the part of respondents tending to show that the aggregate amount of payments made by them was $11,200 and that their obligation had been discharged in full and that nothing remained due thereon.

Opinion

1. Appellant assigns error as follows:

"The court erred in overruling plaintiff's motion for new trial because:

"A. The verdict of the jury was manifestly for the wrong party and contrary to all the credible testimony in the case.

"B. The verdict was based solely on the uncorroborated testimony of one witness and that witness, a defendant, offered perjured testimony to material facts in issue in the case.

"C. The plaintiff was taken by surprise at such testimony. At the time and under the circumstances plaintiff should not have been required to proceed with the trial without an opportunity to show the falsity of such testimony."

2. The motion for a new trial, omitting caption and prayer, was as follows:

"1. That the verdict is against the evidence and the weight thereof.

"2. That the verdict is against the law as applied by the evidence in this case and against the law as set out in instructions given by the court.

"3. That the court erred in giving Instruction No. A, requested by defendant.

"4. That the plaintiff and his attorney were surprised by the testimony of the defendant that he had paid the amount due when in truth and in fact no such amount was paid as claimed by the defendant, as shown by the attached affidavits.

"5. That fraud or deceit has been practiced by defendant on plaintiff in securing a partial duplicate receipt and claiming payment in full thereon, resulting in an improper verdict or finding of said cause.

"6. That a witness and party to said suit committed perjury or mistake in testifying that the amount due plaintiff was paid in full by defendant's sale of corporate stock of W. H. Young & Bros. Inc. to said company and check issued to him therefor being endorsed to plaintiff in payment of said account, when in truth and in fact no such stock was so sold nor check issued or turned over to plaintiff, as shown by attached affidavit, and that such facts were material to the issues in this cause and resulted in an improper and wrongful verdict being rendered, and that plaintiff has a just cause of action in this suit.

"7. That plaintiff has discovered new record evidence to prove that no check was issued to defendant as claimed by him nor turned over to nor cashed nor endorsed by the plaintiff, and that defendant made no sale of his stock to W. H. Young & Bros. Inc. as claimed by defendant, and plaintiff has discovered he can prove such facts, by the records of said company.

"8. That plaintiff has discovered evidence by which he can prove defendant did issue to him a check in the sum of nine hundred dollars as denied by defendant, and that the same was cashed and credited to plaintiff's account, which on account of surprise to plaintiff, and because of lack of time he was not able to produce at the trial of this cause, all as shown by the attached affidavit.

"9. That if a new trial is granted plaintiff he will be able to prove by records and testimony of other witnesses which he has since discovered, the amount due and owing plaintiff has not been paid in full as claimed and testified to by defendant."

3. The first and only point made by appellant in his brief is as follows:

"It is the statutory duty of the court to grant a new trial where a witness and the only witness on whose testimony the verdict was returned, offered perjured testimony to a material fact in issue, where the falsity of such testimony is shown beyond doubt. The plaintiff was not required to make known his surprise at such testimony at the time."

4. It appears that, upon the trial in the circuit court, the appellant was the only witness for himself with reference to the payments made by respondents which he alleged in his petition to be credits to which respondents were entitled and that respondent Eugene Baum was the only witness for respondents upon such issue as to the payments made by them and the credits to which they were entitled. Appellant in his evidence testified that, of the total payments alleged in his petition to have been made by respondents in the sum of $9,559.20, one consisted of an item of $900 paid by check by respondent Eugene Baum. This item the respondent Eugene Baum denied and testified that no such payment was ever made. Respondent Eugene Baum further identified and introduced in evidence in behalf of respondents a certain receipt executed by appellant of date July 25, 1929, acknowledging the receipt of $8,500 as a payment. Respondent Baum testified that such payment was made with a check for $6,000 given by his father-in-law, Lawrence Ozenberger, from whom respondents had borrowed such sum, and by a check from respondent Eugene Baum's employer, W. H. Young & Bros., Inc. (hereinafter referred to as W. H. Young), for $2,500 on account of stock certificates canceled with said concern, which latter check he indorsed to appellant. Appellant denied that he ever received the W. H. Young check or that any payment was ever made by check of W. H. Young at any time. He admitted the receipt of the Ozenberger check and said that the items comprising the balance of said receipt to the amount of $2,500 were for four former payments made by respondents amounting to $2,300 and a rebate allowed them on the purchase price of the lot of $200.

The jury having found for respondents, appellant filed his motion for a new trial, in which he alleged, as one of the grounds therefor, the discovery of new evidence to the effect that he had discovered from the records of W. H. Young that such records failed to show any transactions testified to by respondent to the effect that W. H. Young had issued to him a check for $2,500 on account of canceled certificates of stock and that he could prove by new evidence that no such check was issued and indorsed to appellant and therefore no such sale of stock was made as testified by respondent Eugene Baum and charged that perjury or mistake had been...