Cox v. Polk
| Decision Date | 06 December 1909 |
| Citation | 123 S.W. 102,139 Mo.App. 260 |
| Parties | H. COX et al., Appellants, v. MERRITT POLK, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Haywood Scott, Judge.
AFFIRMED.
Judgment affirmed.
E. L Shepherd for appellant.
(1) Evidence in support of a witness' character for truth and veracity offered before any impeaching testimony is introduced, is premature and should be excluded. State v Cooper, 71 Mo. 436; State v. Thomas, 78 Mo 327; Alkin Grocer Co. v. Tagart, 78 Mo.App. 166; Gutzwiller v. Lackman, 23 Mo. 168; Vawter v. Hullz, 112 Mo. 633; Fulkerson v. Murdock, 53 Mo.App. 151; People v. Bush, 65 Cal. 129; Fitzgerald v. Goff, 99 Ind. 28; People v. Gay, 7 N. Y. (3 Seld.) 378; People v. Van Houter, 38 Hun 168; Braddee v. Brownfield, 9 Watts 124; Wertz v. May, 21 Pa. (9 Harris) 274; Travelers' Inc. Co. v. Sheppard, 85 Ga. 751; 12 S.E. 18; Bran v. Campbell, 86 Ind. 516; People v. Gay, 7 N. Y. (3 Seld.) 378; Osmun v. Winters, 25 Or. 260, 35 P. 250. (2) This is a suit on a contract to recover commission for the sale of real estate, and testimony as to the value or rental value of the property, was wholly inadmissible. Hipsley v. Co., 89 Mo. 348; Brennan v. St. Louis, 92 Mo. 482. (3) Where evidence is utterly incompetent for any purpose a general objection to its admission is sufficient. State v. Patnak, 107 Mo. 47; Alcove v. Railroad, 108 Mo. 82; Hayne on New Trial and Appeal, sec. 105, p. 294; Merrit v. Leaman, 2 Sheldon 168; Nightingale v. Scannell, 18 Cal. 315; State v. Flanders, 38 N.H. 324; Pool v. Devers, 30 Ala. 672; Rogers v. Troots, 51 Mo. 470; Peck v. Chouteau, 91 Mo. 138. (4) Incompetent evidence is never harmless where it may influnece the jury. Shoe Co. v. Hilig, 7 Mo.App. 301; State v. Whelehon, 102 Mo. 17; Robertson v. Tapley, 48 Mo.App. 239. (5) Where the compensation for services rendered, or the price of property sold, or materials furnished is stipulated by express agreement, no evidence of value is admissible. Gibney v. Turner, 52 Ark. 117; 12 So. 201; Pettibone v. Lake View Town Co., 134 Cal. 227; 66 P. 218; Whitton v. Sullivan, 96 Cal. 480; 31 P. 1115; Byrne v. Byrne, 47 Ill. 507; Brigham v. Hawley, 17 Ill. 38; Hart v. Coran, 3 Bibb 26; Craig v. French, 181 Mass. 282; 63 N.E. 893; Knowlton v. Sewall, 10 Allen 34; Campau v. Moran, 31 Mich. 280; Carpenter v. Taylor, 164 N.Y. 171; 58 N.E. 53; Van Orden v. Fox, 32 A.D. 173; 52 N.Y.S. 1, 863; Doyle v. Edwards, 15 S.D. 648; 91 N.W. 322; Lorhner v. Wilcox (Civ. App. 1897), 43 S.W. 27.
F. H. Lee and Nichols & Bond for respondent.
(1) Where the character of a witness is attacked by the ordinary methods of impeachment or by evidence that he has made different statements out of court than those made in court under cross-examination, or that he has made statements out of court that he denies having made, under cross-examination, evidence of the general good reputation of the witness is admissible to repel the attack. And the same rule applies where the witness is a party to the suit, since the impeaching evidence goes to his credibility as a witness and not as a party. Browning v. Railroad, 118 Mo.App. 449; Berryman v. Cox, 73 Mo.App. 67; Miller v. Railroad, 5 Mo.App. 471; Walker v. Phoenix Ins. Co., 62 Mo.App. 209; State v. Speritus, 191 Mo. 24; Paine v. Tilden, 20 Vt. 554. (2) The order of receiving evidence is a matter for the discretion of the trial court and the appellate court will not interfere unless the discretion has been abused. Waterworks v. Joplin, 177 Mo. 496; State v Thornhill, 177 Mo. 691; Stone v. Cook, 179 Mo. 525; Seibert v. Allen, 61 Mo. 482; Greeley v. Provident Savings Bank, 103 Mo. 212; Jefferson v. Ummelman, 56 Mo.App. 440; Fullerton v. Fordyce, 144 Mo. 519; Feary v. Street Ry. Co., 162 Mo. 75; Weller v. Railroad, 164 Mo. 180; State v. Dilts, 191 Mo. 665; State v. Swisher, 186 Mo. 1; State v. Miles, 199 Mo. 530. (3) The fact that evidence was improperly admitted does not constitute grounds for reversal, unless it appears that the admission of such evidence was prejudicial to the party objecting. Coats v. Lynch, 152 Mo. 161; Sanders v. Bldg. & Loan Assn., 178 Mo. 674; Doyle v. Trust Co., 140 Mo. 1; Hollenbeck v. Railroad, 141 Mo. 97; Moss v. Kauffman, 131 Mo. 424; Griffith v. Gillum, 31 Mo.App. 33; Miller v. Miller, 14 Mo.App. 418. (4) Reasons for objecting to evidence must be stated specifically at time of making objection. And where the reasons given are merely general, such as that the evidence is improper, incompetent, immaterial, etc., the appellate court will not review the question of the admissibility of the evidence. Randall v. Railroad, 102 Mo.App. 342; Gayle v. Missouri Car & Foundry Co., 177 Mo. 427; Stoner v. Royar, 200 Mo. 444; Clark v. People's Collateral Loan Co., 46 Mo.App. 245; Glenville v. Railroad, 51 Mo.App. 629; Guinotte v. Egelhoff, 64 Mo.App. 356; State v. Wright, 134 Mo. 404; Stark v. Publishers, 160 Mo. 529; Longan v. Weltmer, 180 Mo. 322. (5) On an issue as to whether or not a contract was made as claimed, any circumstances bearing thereon, or any evidence tending to render that fact probable or improbable, is relevant. 3 Ency. of Evid. 517; Nordyke & Marmon Co. v. Kehlor, 155 Mo. 643; Mosby v. Commission Co., 91 Mo.App. 500; Tufts v. Chester, 62 Vt. 353; Mudgett v. Emerson, 67 N.H. 234; 30 A. 343; Eaton v. Welton, 32 N.H. 352; Randall v. Preston, 52 Vt. 198; Shrimptin v. Netzorg, 104 Mich. 225; 62 N.W. 343; Glessner v. Patterson, 164 Pa. St. 224; 30 A. 355.
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 one thousand dollars 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 good.
As to the first point, we believe the court did not err in permitting witnesses to testify to the value of the real estate. The issues between plaintiffs and defendant were closely drawn. In support of the respondent's contention that he did not offer to sell both of his lots for $ 1,000, he offered the testimony to prove that such an offer would have been unreasonable, for the reason that the property had a market value greatly in excess thereof. We believe the testimony was proper and material, and the court committed no error in admitting it. [Lane v. Mo. Pac. R. R. Co., 132 Mo. 4, 18, 33 S.W. 645.]
In the above cause, Judge SHERWOOD said: "It is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less improbable."
The second point is not so easily disposed of. There is no question but what the court should have sustained appellants' objection to the testimony of the supporting witnesses at the time the same was offered. At that time no contradictory statement or fact had been shown that put the character of the respondent in issue. [State v. Cooper, 71 Mo. 436.] After the evidence was all in, testimony of the character offered was proper. As stated above, the respondent was asked the question, if he had not made a statement contradictory to the testimony he was then giving. This he denied, and subsequently a witness was placed on the stand who testified respondent did make such statement. Under these circumstances, testimony of the character offered is admissible. [State v. Christopher, 134 Mo.App. 6, 114 S.W. 549; Miller v. St. Louis R. Co., 5 Mo.App. 471; Alkire Grocer Co. v. Tagart, 78 Mo.App. 166; Walker v. Pheonix Ins. Co., 62 Mo.App. 209; Berryman v. Cox, 73 Mo.App. 67; Browning v. Railroad, 118 Mo.App. 449.]
Was the admission of this testimony out of the regular order, such an error as to require the cause to be remanded for a new trial? Section 865, Revised Statutes 1899 reads: "The Supreme Court or Court of Appeals shall not reverse the judgment of any court unless it shall believe that error was committed by such court against the appellant or plaintiff in error and materially effecting the merits of the...
To continue reading
Request your trial