Bush v. Brandecker

• Decision Date: 04 February 1907
• Citation: 123 Mo. App. 470,100 S.W. 48
• Parties: BUSH v. BRANDECKER.
• Court: Missouri Court of Appeals

100 S.W. 48

123 Mo. App. 470

BUSH v. BRANDECKER.

Kansas City Court of Appeals. Missouri.

February 4, 1907.

On Rehearing, March 2, 1907.

1. APPEAL—VERDICT—CONCLUSIVENESS.

A verdict on conflicting evidence will not be disturbed unless there was some error substantially affecting the rights of the party complaining.

2. BILLS AND NOTES—POSSESSION BY PAYEE—PRESUMPTIONS.

A note in the hands of the payee is presumptively a subsisting obligation, subject to proof by the maker that it has been paid.

3. SAME — PAYMENT — EVIDENCE — QUESTION FOR JURY.

On the issue whether checks given by the maker of a note to the payee were for a loan or were payments on the note, it appeared that the checks contained the words, "this loan to be repaid on demand," and that they were cashed by the payee, who testified that he did not have notice of such stipulation, and supposed that they were for money which he was to credit on the note, since they were given to him in response to his demand for payment. Held, that the question at issue was for the jury, though the recital in the checks presumptively established a loan.

4. LIMITATION OF ACTIONS—ACTION ON NOTE —TIME OF ACCRUAL.

A note executed May 13, 1890, due in 12 months, was barred in May, 1901, unless kept alive by payments.

5. APPEAL—REVIEW—TRIAL—MISCONDUCT OF COUNSEL—EXCEPTIONS.

In the absence of an exception to a refusal to reprimand counsel for misconduct, there is nothing for the appellate court to review.

6. DAMAGES — VERDICT — REMITTITUR — POWER OF TRIAL COURT.

Where a jury rendered a verdict for the full amount of a note, less payments, and computed interest compounded annually, while interest by the terms of the note could only be compounded the first year, the court properly allowed a remittitur for the excess of interest.

7. APPEAL — ERRORS FAVORABLE TO PARTY COMPLAINING.

A party cannot complain of an error in an instruction operating in his own favor.

8. BILLS AND NOTES — ACTIONS — INSTRUCTIONS.

Where, on the issue whether checks given by the maker of a note to the payee were intended for partial payments on the note, or were for a loan, the evidence might lead the jury to believe that some of the amounts were borrowed and others were not, an instruction submitting the hypothesis that, though the jury should believe that the maker borrowed any of the different amounts claimed, yet, if they believed the note was not paid and was not barred by limitations, they should find for him the amount of the note, less the credits, was not prejudicial to the payee.

Appeal from Circuit Court, Saline County; L. W. Scott, Special Judge.

Action by William D. Bush against John Brandecker. From a judgment for defendant, plaintiff appeals. Affirmed.

Thomas H. Harvey and Robert M. Reynolds, for appellant. Robert B. Ruff and William G. Lynch, for respondent.

ELLISON, J.

Plaintiff instituted this action to recover money alleged to have been loaned to the defendant at different times, aggregating the sum of $860. Defendant by his answer denied borrowing any money of plaintiff, but alleged that plaintiff owed him a note dated May 13, 1890, for $1,698.95, due in one year from date, with 10 per cent. interest. The plaintiff, by reply, alleged that the note was not a subsisting obligation; that it had been paid by legal services rendered to defendant by plaintiff as a lawyer, which services defendant agreed should be in full discharge of the note. He also pleaded that the note was barred by the statute of limitations. Judge Davis, having been advised with while in the practice, did not try the case, and L. W. Scott, Esq., of the Saline county bar, was selected as special judge in his stead.

The record discloses that the dispute between these parties provoked a vigorous and somewhat bitter contest in the trial court. But after full examination of the proceedings, aided by the argument of the respective counsel, both orally and in writing, we find, as we shall presently show, that there is little left for an appellate court to decide. The note to defendant for $1,698.95 is admitted by plaintiff. The sums of money which plaintiff claims were loans made to defendant the latter admits he received. He also admits that plaintiff performed certain legal services for him. But plaintiff claimed at the trial that the note had been discharged by legal services rendered for defendant, and that the sums credited on the note were put there without his consent or knowledge, and that the amounts of money which defendant received from him were as loans, and not payments on the note; while defendant claimed that the note was not settled and discharged by the legal services, and that he did not agree that it should be, that he never borrowed money of plaintiff, and that the money paid to him was in response to his demands upon plaintiff for payments on the note. These matters were all the subject of a sharp and acrimonious contest before the jury, and have been determined in the defendant's favor. So, therefore, unless there has been some error in the trial substantially affecting the rights of the plaintiff, we must affirm the judgment. Otherwise, we substitute ourselves for the jury and overturn a fundamental rule of law. Montgomery v. Railway Co., 181 Mo. 477, 504, 79 S. W. 930. In looking to the very few questions of law which the case presents, it appears only the more clearly how it is peculiarly one for the determination of the jury. In the first place, the note which plaintiff gave to defendant was left outstanding in defendant's hands when this action was begun. Presumptively it was a subsisting obligation, but not conclusively so; for plaintiff explained that it was paid by the performance of legal services, and, when performed, he demanded the note, but that defendant excused himself from delivering it by the statement that it was misplaced. Thus the questions here made were reduced by the law to a simple matter of fact.

Again, the money given over to defendant by plaintiff, with two exceptions, was paid by checks on a bank at Marshall. Plaintiff wrote on these checks indicating that the money was loaned to defendant. Thus, on one were the words, "To be returned...