Crain v. McKinley

• Decision Date: 05 June 1920
• Docket Number: No. 2574.,2574.
• Citation: 222 S.W. 495
• Parties: GRAIN v. McKINLEY.
• Court: Missouri Court of Appeals

222 S.W. 495

GRAIN v. McKINLEY.

No. 2574.

Springfield Court of Appeals. Missouri.

June 5, 1920.

Appeal from Circuit Court, Texas County; I. B. Woodside, Judge.

Suit by I. Harry Crain against D. P. McKinney. From judgment for defendant, plaintiff appeals. Affirmed.

Barton & Impey, of Houston, for appellant.

Lamar, Lamar & Lamar, of Houston, for respondent.

BRADLEY, J.

Plaintiff sued in a justice of the peace court to recover $158.40, claimed to be due him from defendant as commission on some loans and abstracts made by defendant. Plaintiff recovered in the justice court, but on appeal to the circuit court defendant prevailed, and plaintiff appealed.

Defendant was a loan agent, and seems also to have been doing some abstract business. Plaintiff was engaged in the real estate business. Plaintiff claimed that he had an agreement with defendant by which he was to have 50 per cent. of the commission on any loan he procured for defendant, and 20 per cent. of any abstract fee procured for defendant. He claimed that he procured and caused certain loan applicants to go to defendant, to whom defendant made loans, and that of the commission received by defendant on these loans he (plaintiff) was entitled under his agreement to $151.50. Under the agreement concerning abstracts plaintiff claimed $18.40. He credited his account with $11.50 for abstract work for himself, leaving a balance alleged to be due of $158.40.

Plaintiff testified positively to his alleged agreement and to each item in his account, and was corroborated by other witnesses. Defendant was not present at the trial, and there was no evidence offered on his behalf, except some evidence tending to impeach plaintiff. Defendant had lived in Texas county about 10 years, except for a few months prior to the trial. T. J. Hale, who had held the office of probate judge, testified that the general reputation of defendant for morality in that community was not good. W. W. Day, in the creamery business, testified that plaintiff's general reputation in that community for truth, veracity, and morality had not been good as far as he had heard. Jack McCaskill testified that he had lived in Houston for 16 years, and that he had been acquainted with plaintiff 4 or 5 years.

"Q. Are you acquainted with his (plaintiff's) general reputation here in Houston among the people that know him as to truth and veracity and morality? A. I don't know as I could say as to the truth absolutely, but as to the rest of it I think I am acquainted with it. Q. What is it, good or bad? A. I wouldn't consider it good. I don't think I ever heard the question of his truthfulness discussed, but the rest of it I have heard plenty said about it."

Taylor Wilson testified that he did not know much about plaintiff's general reputation for morality, but that the people said it wasn't extra good; that he never heard plaintiff's reputation for truth questioned. Plaintiff on cross-examination admitted:

"I have been convicted of a felony in this court. I was never convicted of crime until I came to Texas county. Since I came here I have been convicted about twice, here and in Dent county."

Plaintiff made no objection to the character of questions eliciting evidence as to general reputation for truth and morality, nor did he make any objections as to the answers given. At the close of the case the court of its own motion gave this instruction:

"The jury are the judges of the credibility of the witnesses and the weight and value they will give to their testimony. In determining the weight you will give to the testimony of a witness you may take into consideration the character of such witness for truth and veracity, or morality, if shown by the evidence."

With his motion for a new trial plaintiff filed the affidavit of one Henry Britton, in which affidavit affiant stated that the defendant, McKinley, told affiant:

"That he (McKinley) owed plaintiff one hundred and fifty odd dollars, that plaintiff was about to sue him, and he would have to get some money from the bank, and it would be necessary for him to have some help, and asked affiant whether he ever helped persons under such conditions, and that so far as affiant knows neither plaintiff nor his attorney knew anything about the conversation aforesaid until Friday, the 25th day of April, 1919."

The trial was on April 23d. Plaintiff sought a new trial on the ground, among others, of newly discovered evidence, and this affidavit contains the evidence referred to. Plaintiff and his attorneys who represented him in the circuit court filed affidavits with the motion as to their diligence and failure to discover this evidence. There was also filed a counter affidavit of the attorney who represented plaintiff in the justice court. The counter affidavit stated that the affiant was attorney for plaintiff in the justice court, "and as such attorney filed such suit, and was attorney for plaintiff some time thereafter, and while such...