Collins v. Hutchings

• Decision Date: 30 April 1917
• Docket Number: No. 12257.,12257.
• Citation: 194 S.W. 733
• Parties: COLLINS v. HUTCHINGS.
• Court: Missouri Court of Appeals

194 S.W. 733

COLLINS v. HUTCHINGS.

No. 12257.

Kansas City Court of Appeals. Missouri.

April 30, 1917.

Appeal from Circuit Court, Jackson County; Elijah Robinson, Special Judge.

"Not to be officially published."

Action by J. O. Collins against Charles F. Hutchings. Verdict for plaintiff, and from an order granting a new trial, plaintiff appeals. Affirmed.

Kyle & Coon and H. H. McCluer, all of Kansas City, for appellant. McCabe Moore, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action was instituted to recover a commission for the sale of real estate situated in the state of Texas. He obtained a verdict in the circuit court. Defendant thereupon filed a motion for new trial, which was sustained by the court on the ground that, "under plaintiff's petition, error was committed in giving plaintiff's instruction No. 1." Plaintiff has appealed from that order.

Defendant asked a number of instructions, among others a demurrer to the evidence, which was refused. The rule is that, although the reason given for granting a new trial may not be sound, if other reasons set up by the losing party in his motion for a new trial are found to be good ground for another trial, the order granting it will be upheld (State ex rel. v. Thomas, 245 Mo. 65, 77, 149 S. W. 318), and we find that ample other reasons were stated.

It perhaps would have been better if the trial court had added to his statement of reason after word "petition" the words, "and evidence in the cause," for, in our opinion, the case stated in the petition was attempted to be supported by plaintiff with evidence so different that the case stated is not to be recognized in the case made. A verdict in such circumstances should not be allowed to stand; for the rule is that the evidence to support a cause of action must be within the paper issues. Degonia v. Railroad, 224 Mo. 588, 123 S. W. 807; Bank v. Murdock, 62 Mo. 73; State ex rel. v. Ellison (Sup.) 176 S. W. 11.

One need only read the petition in connection with the abstract of the evidence, especially plaintiff's concession in his reply brief, of what that evidence is, to learn that he pleaded one case depending on one state of facts, and proved another case depending upon an altogether different state of facts.

It is alleged in the petition: That plaintiff procured a purchaser for the land owned by defendant. That he informed defendant of that fact, and defendant agreed to pay him $5,250 if he made the sale. That he afterwards (on the 20th of October, 1913) did sell it to one H. D. Oats, on the following terms: $70,000, a part of which was represented by real estate in Oklahoma City valued at $32,000, to be conveyed by Oats to defendant, and the balance was to be in vendor's lien notes executed by Oats for $38,000 on the Texas land. That defendant agreed to pay him $500 on the commission as soon as the sale was made, and the balance when he (defendant) sold the Oklahoma City property. It is alleged: That plaintiff procured a warranty deed from Oats to defendant for the Oklahoma City property, and that he...