Cole v. Armour

• Decision Date: 20 February 1900
• Citation: 55 S.W. 476,154 Mo. 333
• Parties: COLE v. ARMOUR, et al., Appellants
• Court: Missouri Supreme Court

55 S.W. 476

154 Mo. 333

COLE v. ARMOUR, et al., Appellants

Supreme Court of Missouri, First Division

February 20, 1900

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Reversed and remanded.

Lathrop Morrow, Fox & Moore for appellants.

(1) The entire record discloses a failure on the part of plaintiff to prove his case. The evidence neither sustains the allegations of his petition nor shows his right to recover. Denny v Kyle, 16 Mo. 454; Stout v. St. Louis Tribune Co., 52 Mo.App. 346; Turner v. Mellier, 59 Mo 535; Clements v. Yeates, 69 Mo. 625; Smith v. Haley, 41 Mo.App. 616; Whipple v. Peter Cooper B. & L. Ass'n, 55 Mo.App. 554; Feurth v. Anderson, 87 Mo. 354; Groll v. Tower, 85 Mo. 249; Smith v. Shell, 82 Mo. 215. (2) The court erred in giving the first instruction asked by plaintiff. Stokes v. Distillery Co., 64 Mo.App. 420; Jones v. Grossman, 59 Mo.App. 195; Manufacturing Co. v. Troll, 69 Mo.App. 475. (3) The court erred in refusing to admit in evidence proffered testimony by competent witnesses that shortly before his death testator denied that he owed plaintiff anything whatever. Kennedy v. Kennedy, 57 Mo. 73; Carney v. Carney, 95 Mo. 353; Ringo v. Richardson, 53 Mo. 385; Cornet v. Bertelsman, 61 Mo. 118; Benne v. Benne, 56 Mo.App. 504; Greenl. on Evid., sec. 200; State v. Howard, 118 Mo. 142. (4) The verdict of the jury showed upon its face that it was a perverse verdict, and it should, therefore, have been set aside. It should have been for the full amount claimed in plaintiff's petition or for nothing. Werringer v. Ahlemeyer, 23 Mo.App. 277; Rafferty v. Railroad, 15 Mo.App. 559. (5) The trial judge erred in not sustaining defendant's motion for a new trial since in its opinion the verdict was against the weight of the evidence. Bank v. Wood, 124 Mo. 72; Railroad v. Ryan, 49 Kan. 1; Kreis v. Railroad, 131 Mo. 533. (6) The court erred in refusing instruction 18 asked by defendants, which reads as follows: "The jury are instructed that although the admissions of Thomas C. Cole are competent evidence in behalf of plaintiff, yet they are to be received and considered by the jury with great caution." Greenl. on Evid., sec. 200; Chouquette v. Barada, 28 Mo. 499; State v. Seal, 47 Mo.App. 608; Ringo v. Richardson, 53 Mo. 394; Hope v. Evans, 1 Sm. & Mar. Ch. 204; Carney v. Carney, 95 Mo. 353.

F. M. Black and Durall & Clear for respondent.

It is insisted that the judgment should be reversed, because the verdict is for $ 6,000 when it should either be for $ 12,000 or for nothing; and this seems to be the ground on which the opinion of the Supreme Court in Division One is based. To understand this question it is essential to refer to the instructions so far as they relate to the measure of damages. These instructions, both on the one side and the other, do not require the jury to find in any given amount. The door is purposely left wide open. The cases cited by the defendants as supporting their contention are Rafferty v. Mo. Pac. Ry. Co., 15 Mo.App. 559, and Werringer v. Ahlemeyer, 23 Mo.App. 277. The first of these cases was an action by husband and wife for damages for the death of a child. The action was based upon that clause of our damage act which provides that the damages recovered must be $ 5,000 or nothing; and so the jurors were clearly and plainly instructed. The jury found for the plaintiffs in the sum of $ 2,500. In Alderman v. Cox, 74 Mo. 78, this court said: "The defendant has no ground of complaint because the jury found a verdict for plaintiff for 'just one-half of the amount' the latter claimed was due him, notwithstanding the evidence as to the amount due him was uncontradicted. The defendant can not be said to have been injured because compelled by the verdict to pay a less sum than he contracted to pay. Were the plaintiff complaining, a different question would be presented; one not necessary to be now considered. The result is, we affirm the judgment." See, also, Gety v. Sack, 19 Mo.App. 477; Chinn v. Davis, 21 Mo.App. 365; Gifford v. Weber, 38 Mo.App. 595; Dobbs v. Cate's Estate, 60 Mo.App. 659. So it was held in Crawford v. Ahrens, 103 Mo. 96, in an action of ejectment, that the defendant had no right to complain because the judgment was for less land than the plaintiff was entitled to recover. See, also, Wood v. Belden, 54 N.Y. 65.

MARSHALL, J. Sherwood, Brace and Valliant, JJ., concur; Gantt, C. J., Burgess and Robinson, JJ., dissent.

OPINION

In Banc.

MARSHALL J.

-- Prior to 1870, Thomas C. Cole and his brother, the plaintiff, James C. Cole, lived in Milwaukee. In that year Thomas moved to Kansas City, Mo., and entered the employ of Plankington & Armour, now the Armour Packing Co., and remained in such employ until his death, having for many years been one of their highest salaried men. Soon after his removal to Missouri, Thomas acquired a ranch in Lincoln county, Kansas, and in 1874, James sold some property he owned in Wisconsin for some thirty-six hundred dollars, and moved to Kansas and became the manager of the ranch aforesaid.

The evidence is conflicting as to whether he was the manager for or the partner of his brother. In 1884, the ranch consisted of 3,949 acres, of which 640 acres stood in the name of James, and the evidence is also conflicting as to whether James paid for this 640 acres or whether Thomas did so.

On the 8th of March, 1884, Thomas entered into the following contract of sale of the ranch to J. F. Corle, of Kansas City:

"This memorandum of agreement made and entered into this eighth day of March, A. D. 1884, by and between T. C. Cole and J. F Corle, both of the City of Kansas, county of Jackson and state of Missouri, WITNESSETH:

"First. The said Cole has this day sold to said Corle four hundred and fifty-two cattle, more or less, the exact number to be determined by actual count at the time of delivery on the ranch, at the price and sum of thirty dollars per head, spring calves not to be counted. Also twenty-six horses, mules and colts, more or less, the exact number to be ascertained by count, after said Cole has reserved such of said ponies as he desires to keep, at the price and sum of fifty dollars per head. Also all the farm machinery, harness, corn, rye, wagons, buggies, car of fence wire and posts, without extra charge.

"Also three thousand nine hundred and forty-nine acres of land, at the price and sum of ten dollars per acre. Said land is situated in the county of Lincoln and state of Kansas, and is particularly described as follows: The west half of the northwest quarter of section sixteen, all of sections seventeen, eighteen and nineteen, the west half of section twenty, all of section twenty-one except the northeast quarter, the north half of section twenty-two, all of section twenty-nine, the northeast quarter of section thirty; fifteen acres excess in the northwest quarter of section eighteen, fourteen acres excess in the southwest quarter of section eighteen, all of the said real estate being in township twelve and range nine, west.

"Second. In consideration of the foregoing sale by said Cole, the said Corle, in payment therefor, has this day sold to said Cole the following described real estate, situate in the county of Jackson and state of Missouri, to wit: Lots twenty-seven, twenty-eight, twenty-nine, and thirty, in block forty, in Turner & Company's addition to the City of Kansas.

"Upon this property is a deed of trust securing the payment of five notes of fifty-five hundred dollars each, due August 9th, 1884, 1885, 1886, 1887 and 1888 respectively, bearing interest at the rate of five per cent per annum, payable semiannually. This deed of trust and the notes secured thereby are to be assumed by said Cole, the said Corle paying him the interest thereon from February 9th, 1884, to the time of closing this transaction and exchanging deeds. This real estate of said Corle is put into the trade, after deducting the notes assumed by said Cole, as aforesaid, at the sum of forty-four thousand five hundred dollars, and the remainder of the purchase price for said Cole's property is to be paid by said Corle in cash, amounting to about nine thousand eight hundred and fifty dollars.

"Third. Said Corle is to furnish said Cole a complete abstract of title to his said property from the United States down to date, and the same is to be submitted to Lathrop & Smith, for examination, and the title shall be subject to their approval. Said Corle shall also furnish said Cole such certificates as to judgments and taxes as shall be required by said Lathrop & Smith.

"Upon approval of title, said Corle shall execute and deliver a good and sufficient warranty deed to said property to said Cole, excepting only said deed of trust hereinbefore referred to, and special taxes for paving Union avenue.

"If said title be disapproved by said Lathrop & Smith, the contract shall be canceled.

"Said Cole is to furnish said Corle complete abstract of title to his said property and certificates as to judgments.

"Fourth. Upon delivery of said deed, the said Cole shall deliver a bill of sale and turn over actual possession of the personal property hereinbefore described to said Corle at the ranch in Lincoln county, Kansas, and shall deliver to said Corle a good and sufficient warranty deed to the real estate in said county, above particularly described.

"Fifth. Each party shall pay the taxes for 1884 on the property now owned by him.

"Sixth. The said T. C. Cole shall have his brother, James C. Cole now in charge of his ranch, remain in charge thereof until the first day of July, A. D. 1884, and the said Corle agrees to retain him until that time and pay him the sum of one hundred and twenty-five dollars per month for his services from the...