Cox v. Polk

• Decision Date: 06 December 1909
• Citation: 123 S.W. 102
• Parties: COX et al. v. POLK.
• Court: Missouri Court of Appeals

123 S.W. 102

COX et al. v. POLK.

Springfield Court of Appeals. Missouri.

December 6, 1909.

1. BROKERS (§ 85)—ACTION FOR COMMISSIONS — ADMISSIBILITY OF EVIDENCE—VALUE OF PREMISES.

In an action for broker's commissions, where plaintiffs claimed that defendant had agreed to give them as commission all sums in excess of $1,000 that they could realize on a sale of lots, and defendant claimed that such agreement only applied to one of the lots and not both of them, and the issues were closely drawn, evidence of the value of the lots was admissible to show that the agreement claimed by plaintiffs would have been unreasonable because the property had a market value greatly in excess of $1,000.

2. APPEAL AND ERROR (§ 970) — REVIEW — RECEPTION OF EVIDENCE—ORDER OF PROOF —DISCRETION OF COURT.

The order of proof rests in the discretion of the trial court, and unless it is grossly abused, or the ruling of the court is evidently prejudicial, it will not be reviewed.

3. APPEAL AND ERROR (§ 1047)—HARMLESS ERROR — RECEIVING EVIDENCE OUT OF ORDER.

Under Rev. St. 1899, § 865 (Ann. St. 1906, p. 812), providing that the Supreme Court or Court of Appeals shall not reverse a judgment unless it shall believe that error was committed by the court rendering it against appellant or plaintiff in error, and materially affecting the merits of the action, it is not ground for reversal that impeaching evidence as to defendant's general reputation for truth and veracity was admitted before any contradictory statement or fact had been shown putting his character in issue, where defendant subsequently denied that he had made a statement contradictory to the testimony he was then giving, so that impeaching testimony was then admissible; the admission of the proof out of order not being prejudicial to defendant's substantial rights upon the merits.

Appeal from Circuit Court, Jasper County; Haywood Scott, Judge.

Action by H. Cox and another against Merritt Polk. Judgment for defendant, and plaintiffs appeal. Affirmed.

E. L. Shepherd and Mooneyham & Phelps, for appellants. F. H. Lee and Nichols & Bond, for respondent.

GRAY, J.

The appellants sued respondent in an action on contract before a justice of the peace for commission alleged to be due appellants for the sale of certain real estate in the city of Joplin belonging to the respondent. Trial in the circuit court of Jasper county February 27, 1908, before a jury, resulting in a verdict and judgment for defendant, and plaintiffs appealed.

The facts briefly stated are as follows: The plaintiffs were real estate agents in Joplin, and the defendant was the owner of two lots in the city. The plaintiffs claimed they had a contract with defendant, by the terms of which he agreed to give them as commission all sums in excess of $1,000 they could realize on a sale of the property. The respondent claimed that this only applied to one of his lots, and not both of them. The appellants found a purchaser for both of the lots for $1,150, and respondent, refusing to make the deed, brought this suit to recover their commission of $150.

There are but two questions in the case: First. The court permitted witnesses to testify to the value of the respondent's property. The testimony was offered by the respondent, and was for the purpose of corroborating his testimony that he did not offer both lots for $1,000, as their market value was greatly in excess thereof. Second. The court permitted two witnesses to testify to the general reputation of the respondent for truth and veracity. On cross-examination respondent was asked the following question: "Did you not tell him [one Bartlett] one day you thought you had sold your property, but the old woman would not sign the deed, and you was glad she would not because you really thought it was worth more money?" The witness answered: "I never told the gentleman any such thing." Before Bartlett was placed on the stand, and before respondent had rested his case in chief, he called the two witnesses as above stated, who testified over the objection and exception of appellants' attorney that the respondent's reputation for truth and veracity was...