Butts v. Gunby

• Decision Date: 11 January 1909
• Citation: 135 Mo. App. 28,115 S.W. 493
• Parties: BUTTS v. GUNBY et al.
• Court: Missouri Court of Appeals

115 S.W. 493

135 Mo. App. 28

BUTTS v. GUNBY et al.

Kansas City Court of Appeals. Missouri.

January 11, 1909.

1. TRIAL (§ 386)—TRIAL BY COURT—INSTRUCTIONS.

Instructions in a case tried without a jury only show the theory on which the court proceeded.

2. APPEAL AND ERROR (§ 1010)—QUESTIONS OF FACT.

Findings of fact by the trial court, supported by abundant evidence, will not be disturbed.

3. APPEAL AND ERROR (§ 878)—REVIEW— PARTIES ENTITLED TO ALLEGE ERROR.

On appeal by defendant alone, the court will not consider plaintiff's contention that the evidence was insufficient to sustain defendant's claim of recoupment.

Appeal from Circuit Court, Livingston County; Francis H. Trimble, Judge.

Action by Henry C. Butts against William J. Gunby and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Scott J. Miller and Kitt & Taylor, for appellants. J. M. Davis & Sons and Frank Sheetz & Sons, for respondent.

ELLISON, J.

This action was instituted by plaintiff to recover part proceeds of money acquired by loans negotiated through defendants as agents for plaintiff. The trial was without a jury, and the court rendered judgment for plaintiff. It appears that plaintiff owned a farm in Ralls county, upon which parties in Shelby county held a mortgage, then about due. The moving cause of plaintiff's connection with these defendants arose on account of that mortgage. The Shelby county parties wanted their money, and plaintiff engaged defendants to procure a loan for him from Bartlett Bros., of St. Joseph, for $12,500, at 6 per cent. interest.

Defendants' answer may be said to make an exhibit or statement of the dealing between them and plaintiff, and of the various employments to obtain loans, and of the expense they incurred in and about such employment. They embody a part of these in a claim for set-off or recoupment, and ask judgment in various sums against the plaintiff. It seems there was delay in getting the loan from Bartlett Bros., and temporary loans were necessary in order to be able to settle with the Shelby county parties. Finally it was concluded that the money could not be had through the Bartletts, and negotiations were taken up with others. But defendants represented to plaintiff that the Bartletts would charge $150 for a release of their contract to make the loan, and that sum was allowed to defendants, when in fact they only paid Bartletts $50. Charges were made by defendants for obtaining a temporary loan, when plaintiff...