Chandler v. Guenther

• Decision Date: 08 September 1936
• Docket Number: No. 5709.,5709.
• Citation: 96 S.W.2d 638
• Parties: CHANDLER et al. v. GUENTHER.
• Court: Missouri Court of Appeals

96 S.W.2d 638

CHANDLER et al. v. GUENTHER.

No. 5709.

Springfield Court of Appeals. Missouri.

September 8, 1936.

Appeal from Circuit Court, Newton County; Emory E. Smith, Judge.

"Not to be published in State Reports."

Action by R. B. Chandler and others against J. A. Guenther. Judgment for the plaintiffs, and the defendant appeals.

Affirmed.

J. T. Pinnell and Lon Kelley, both of Pineville, and A. R. Dunn, of Neosho, for appellant.

O. R. Puckett, of Pineville, and Ruark & Ruark, of Neosho, for respondents.

SMITH, Judge.

This is the second time this case has been before us. On the former appeal the judgment was affirmed and the cause was remanded for another trial. See (Mo.App.) 69 S.W.(2d) 962. The case was tried again to a jury, and verdict and judgment in the sum of $2,800 was had for the plaintiffs, and defendant has appealed to this court.

The issues are clearly stated by the pleadings. The petition alleges that the plaintiffs were owners of 164 acres of real estate in McDonald county, Mo., and that the same on the ____ day of September, 1931, was of the reasonable market value of $15,000, but was subject to liens and encumbrances of $12,200, leaving reasonable market value of plaintiffs' equity at $2,800.

The petition continued as follows:

"That on such date the defendant, J. A. Guenther, agreed to take and trade for, and the plaintiffs agreed to deed and trade away, such farm subject to the encumbrances thereon, in exchange for a certain piece of residence property, located in the City of Anderson, Missouri, known as the Chambliss place, and described as follows:

"* * * (Description omitted here.) which the said J. A. Guenther agreed to transfer and convey to the plaintiffs in return for the execution of deed of conveyance from the plaintiffs conveying plaintiffs' said property to him; and the sum of $600.00 in cash or a promissory note in such event secured by chattel mortgage.

"That in consummation of such agreement and transaction the plaintiffs made, executed and delivered to the defendant their warranty deed conveying the fee simple title of their said property to the said J. A. Guenther, which said deed the said J. A. Guenther then and there received and accepted and in addition thereto did tender and offer to pay the said J. A. Guenther the said sum of $600.00 in cash or furnish satisfactory note and chattel mortgage accruing the same.

"That notwithstanding such facts, and although he had accepted and received title to the plaintiffs' said property the said J. A. Guenther did thereafter refuse, and still does refuse, to transfer his said property to the plaintiffs or to go farther in any extent or degree in consummation of said transaction.

"And so in such manner the said J. A. Guenther did take, have and receive the plaintiffs' said property above described, and title thereto, although wholly failing to pay the consideration therefor.

"Wherefore plaintiffs pray judgment in the sum of $2,800.00 and for costs."

The defendant's answer was a general denial of the allegations of the petition.

The case is before us under six assignments, which we quote as follows:

"1st. The court erred in refusing to sustain defendant's demurrer to the evidence at the close of plaintiff's evidence and at the close of all the evidence. There was not sufficient evidence offered by the plaintiffs to establish a contract of exchange or sale.

"2nd. The court erred in admitting incompetent, irrelevant and immaterial evidence offered by the plaintiffs over the objections of the defendant, being all of such evidence so offered and admitted by the court.

"3rd. The court erred in rejecting competent, relevant and material evidence offered by the defendant and rejected by the court, being all of such evidence so offered and rejected by the court.

"4th. The court erred in overruling defendant's motion for a new trial. The verdict of the jury was clearly the result of the bias and prejudice of the jury against the defendant, aroused by the admission of evidence that defendant was the Vice President of a bank which had failed, and other evidence.

"5th. The court erred in giving plaintiff's instructions No. 1, 2 and 3.

"6th. The court erred in refusing defendant's instruction No. `B.'"

These assignments will be considered in the order presented, and with these we shall set out such of the facts as we may deem necessary.

The plaintiffs insist that there is no merit to the defendant's contention under the first assignment for two reasons: First, that there was no written demurrer offered by the defendant; and, second, defendant requested, and the court gave, instructions submitting to the jury the question of the delivery of the deed and the question of the existence of a contract of exchange between the parties, and having done so, he cannot now insist that there was not evidence to make such issue one for the jury.

The record fails to show that any written instruction in the nature of a demurrer was offered by the defendant, and the record also shows that the defendant requested and the court gave at his instance instructions submitting to the jury the question of delivery of the deed and also the question of the existence of a contract of exchange of properties between the parties.

Our courts have universally held that demurrers to the evidence must be in writing. Lintz v. Atlanta Ins. Co., 226 Mo. App. 1087, 49 S.W.(2d) 675, and cases there cited; Dusky v. Kansas City, 227 Mo.App. 849, 58 S.W.(2d) 768. Thompson v. Main Street Bank, 226 Mo.App. 246, 42 S.W.(2d) 56, and cases there cited.

Also the holdings of our courts are just as universal to the effect that where defendant files no written demurrer, and then requests and the trial court gives requested instructions, submitting to the jury the issues of fact involved in plaintiffs' case, that he cannot afterwards insist that there was no evidence to go to the jury on such issue. Williams v. St. Louis Public Service Co., 335 Mo. 335, 73 S.W.(2d) 199; Pulsifer v. City of Albany, 226 Mo.App. 529, 535, 47 S.W.(2d) 233, and cases there cited. People's Bank v. Ætna Casualty & Surety Co., 225 Mo.App. 1113, 40 S.W.(2d) 535, loc. cit. 541, and cases there cited.

So we rule the first point against the defendant.

The second assignment, which we have quoted above, is a general charge of error as to the admission of incompetent, irrelevant, and immaterial evidence offered by plaintiff. This assignment is general, and the defendant, in the assignment, in his points and authorities, or in his argument, fails to point out definitely any error. Under his points and authorities he says: "Witnesses were permitted to state their conclusions with reference to the exchange of deeds and were permitted to repeatedly bring before the jury matters that were wholly outside the issues and irrelevant and immaterial." We carefully read all the evidence and do not find any reversible error therein.

The third assignment with reference to rejecting testimony offered by defendant is also general and nowhere points out the particular error. We do not find this point referred to under his points and authorities nor in the argument, so we consider this point abandoned. It is too general for consideration on appeal. Taylor v. Missouri Natural Gas Co. (Mo.App.) 67 S.W.(2d) 107.

The fourth assignment complains...