Butts v. Phelps

• Decision Date: 14 February 1887
• Parties: Butts, Administrator, v. Phelps, Appellant
• Court: Missouri Supreme Court

3 S.W. 218

90 Mo. 670

Butts, Administrator, v. Phelps, Appellant

Supreme Court of Missouri

February 14, 1887

Appeal from Webster Circuit Court. -- Hon. Ben. V. Alton, Judge.

Affirmed.

C. W Thrasher for appellant.

(1) Plaintiff's amended petition or statement of cause of action in this cause is insufficient. It fails to state facts sufficient to constitute any cause of action within section 2852, Revised Statutes. Casey v. Clark, 2 Mo. 12; Odle v. Clark, 2 Mo. 13; Wathen v. Farr, 8 Mo. 324; Breshears v. Strock, 46 Mo. 221; Swartz v. Nicholson, 65 Mo. 508; Iba v. Railroad, 45 Mo. 470; Butts v. Phelps, 79 Mo. 302. (2) The court below committed error in overruling defendant's objections to plaintiff's testimony; it was, at most, but inferential and hearsay, and not a statement of facts. (3) The court erred in refusing to give the instructions asked by the defendant, excluding the testimony of witness, Yandall because the same was hearsay. (4) The court erred in giving instructions for respondent and refusing the same as asked by appellant. (5) The existence of the debt, claimed to have been lost by the misconduct of defendant, was neither alleged in the amended petition, nor proved by the evidence.

Smith Silver & Brown and Rush & Foster for respondent.

(1) The plaintiff's statement of his cause of action was sufficient. It advised defendant of the nature of plaintiff's claim and was sufficiently specific to be a bar to another action. Measuring the sufficiency of the statement by the rule declared in this and other cases, it must be deemed good. Butts v. Phelps, 79 Mo. 302; Razor v. Railroad, 73 Mo. 471; Iba v. Railroad, 45 Mo. 469; Norton v. Railroad, 48 Mo. 348; Key v. Railroad, 73 Mo. 475; Meyer v. McCable, 73 Mo. 236. (2) The instructions given for the plaintiff outlined correct principles of law for the government of the jury, in determining the question whether defendant was liable on the state of facts offered in evidence by plaintiff, in support of the allegation in his statement. Butts v. Phelps, supra; Melcher v. Exchange Bank, 85 Mo. 362; Green-leaf on Evid. sec. 201, note 2; Story on Agency [9 Ed.] sec. 24, note 2; Railroad v. Stephens, 36 Mo. 150; Spears v. Ledergerber, 56 Mo. 465; Weeks on Attorneys, 397. (3) Instructions given at defendant's request fairly presents the law of his side of the case, while those refused for him were rightly refused.

Ray, J Brace, J., absent.

OPINION

Ray, J.

This cause has, once before, been in this court, when it was reversed and remanded, on account of the insufficiency of the statement (see 79 Mo. 302). Thereafter, plaintiff filed an amended statement in the cause, and a re-trial thereof has again resulted in a verdict and judgment in favor of the plaintiff, from which defendant has again appealed to this court.

The material facts of the case, as detailed in the present record, are, in substance, that McAlpine & Butts, in the winter of 1875 and 1876, sold three mules to Stroud & McBride, who lived at or near Watson, in the state of Arkansas, and received in part payment therefor, a draft drawn by them on a Memphis firm, payable in ninety days from its date. On their return to Webster county, Missouri, where they lived, McAlpine placed the draft in the defendant's hands for collection. Plaintiff and defendant differ as to the amount of the draft, but it was for either one hundred and twenty-five dollars, as plaintiff says, or for ninety dollars, as defendant thinks, and whether for the one sum or the other is immaterial, as the judgment is for fifty dollars. The draft was sent, thereafter, by defendant, to one Moore, an attorney, at either Watson or Napoleon, Arkansas, for collection, who, it appears, received it, but as to what he did with it, or what became of it, does not, perhaps, so satisfactorily appear. Neither plaintiff nor defendant, however, saw it, after it was sent to Moore. Some efforts, which were unsuccessful, were made by defendant to take the business out of Moore's hands, and there was some controversy between defendant and said Moore about the matter. Said Moore, it seems, at one time wrote defendant a letter, purporting to enclose money, on account of the draft, but, in point of fact, the letter, when received, contained no money, as stated therein. No notice of protest of the draft was ever received by plaintiff, and the facts and circumstances would seem to indicate that the draft was either paid, when presented by Moore, or was never presented by him. The evidence does not show, or indicate, that defendant has ever received any money on account of said collection. So far, then, as we understand the record, there is not much, if any, dispute as to the facts.

The material, meritorious and controlling question in the case however, was, as to whether, upon the delivery of the draft to defendant, or whilst it was in his possession, he was directed by plaintiff to send it to a specified agent in Arkansas, for collection, and upon this question the testimony of plaintiff and defendant is directly conflicting and contradictory. They were the only witnesses, testifying in the case, except one Yandall, called in rebuttal, whose testimony we deem unimportant. Plaintif...