Crowley v. Gossett

• Decision Date: 02 July 1888
• Citation: Crowley v. Gossett, 32 Mo.App. 17 (Kan. App. 1888)
• Parties: THOMAS M. CROWLEY, Respondent, v. WINFIELD GOSSETT, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 17

THOMAS M. CROWLEY, Respondent, v. WINFIELD GOSSETT, Appellant.

Court of Appeals of Missouri, Kansas City.

July 2, 1888

Appeal from Audrain Circuit Court. --HON. CYRUS A. ANTHONY, Judge.

AFFIRMED.

The case is stated in the opinion.

David Rea, Jule Sanders, T. H. Ensor and W. W Ramsey, for the appellant.

(1) The court erred in refusing to permit defendant Gossett to testify whet instructions he gave his brother William Gossett about paying the two hundred and twenty dollars into the bank. (2) The court erred in refusing to permit the witness George T. Bennett to testify what directions and instructions William Crowley, agent of plaintiff, gave to him at the time the receipt was left with him, and to give evidence of the agreement between said William Crowley and defendant Gossett as they expressed it to him at the time they left the receipt in his hands. What an agent says, when acting for his principal, within the scope of his real or ostensible authority, with reference to a given matter touching his agency, is always admissible in evidence as a part of the res gestae. Meager v. Railroad, 14 Mo.App. 499; Scoville v. Glasner, 79 Mo. loc. cit. 455; 1 Greenl. Ev. (14 Ed.), secs. 113, 114; Peck v Ritchey, 66 Mo. loc. cit. 118; Robinson v Walton, 58 Mo. 380. This evidence was material and important. The issue hinged upon the fact whether the defendant Gossett complied with the terms and conditions of the compromise and settlement made with William Crowley, agent of plaintiff; such agreement made in the presence of and partly consisting of directions given to George T. Bennett. In view of this, the declarations of William Crowley, made dum fervet opus, are a part of the res gestae, and ought to have been admitted. Bevis v. Railroad, 26 Mo.App. loc. cit. 22. (3) The court erred in not permitting the witness Bennett to tell what directions he gave the bank when he left the receipt, and in not permitting the banker, F. I. Dunn, to testify what directions Bennett gave him when he (Bennett) left the receipt in bank, and to further testify what William Gossett said at the time he paid the two hundred and twenty dollars into bank and lifted the receipt, as agent for defendant Gossett, and to explain if he could, why the two hundred and twenty dollars was placed in bank to the credit of Samuel Crowley instead of to Thomas Crowley. That any jury might be in doubt concerning this payment, when every witness who could throw light upon it was Quakered through in such humpty-dumpty style, is no wonder. (4) The court erred in permitting the witness John Phillippi to testify to what defendant Gossett said to him, while parties were trying to effect a compromise or settlement concerning the amount of damages or when he would pay balance, etc. The policy of the law favors such amicable settlement, and forbids that either party should take advantage of statements thus made. 2 Wharton's Ev. (2 Ed.) sec. 1000, and cases cited; 1 Greenl. Ev. (12 Ed.) sec. 192; Ferry v. Taylor, 33 Mo. 323, 333; Railroad v. Farrell, 76 Mo. 183. (5) The court erred in permitting plaintiff to introduce one witness and rest, and then, after defendant had introduced his evidence and closed, to call John Phillippi, Samuel Crowley, William Crowley, John W. Crank, the plaintiff Crowley, and to give evidence in chief and open up anew his case, and to cover the ground touched by his first witness. While we admit the order in which evidence shall be introduced is in the discretion of the trial court, yet we submit this record shows a flagrant abuse of discretion. Davis v. Railroad, 13 Mo.App. 449. This was not a case where, through inadvertence, a witness was omitted, on opening, as in Tierny v. Spiva, 76 Mo. 279. Such evidence should not have been admitted under the semblance of rebuttal. Christal v. Craig, 80 Mo. 375. (6) The court erred in the giving, refusing and modifying of instructions appearing in the record. The plaintiff must recover upon the pleadings and the cause sued upon. Currier v. Lowe, 32 Mo. 203; Camp, Adm'r, v. Heelan, 43 Mo. 591; Hassett v. Rust, 64 Mo. 325; Bank v. Armstrong, 62 Mo. 70; Glass v. Gelvin, 80 Mo. 297. Plaintiff could not repudiate the contract of settlement, avoid its obligations, and yet claim that defendant should be bound by the measure of damages agreed upon i?? said compromise. Truman v. Stephens, 83 Mo. 218. (7) The court erred in refusing to sustain defendant's motion for a new trial, as well as for the reasons hereinbefore stated as for and on account of the newly discovered evidence of George L. Wilfley, the banker to William Crowley first talked about the matter, and to whom William Gossett paid the two hundred and twenty dollars. This application, we think, complies with the requirements of the law, as declared by the Supreme Court. Wilfley's evidence would not be a cumulation, merely, in that he would testify that William Crowley saw him at his bank and made arrangements to leave receipt if he failed to see Gossett; that William Gossett paid the two hundred and twenty dollars into his bank and took up the receipt in pursuance with the instructions of Bennett, who left it there; that he (Wilfley) was led to make the deposit to Samuel Crowley's credit instead of to Thomas Crowley, by his talk with William Crowley, plaintiff's agent, and in no wise induced thereto by defendant or his agent. This evidence, so pointed and direct, we think, would probably produce a different result.

P. Mercer and Booher & Williams, for the respondent.

(1) There is no force in appellant's first point. Defendant's instructions to his brother William concerning the payment of the two hundred and twenty dollars into the bank were entirely irrelevant and immaterial, and besides appellant was permitted to testify fully on that point. (2) Appellant's second point is not well taken. The witness Bennett was permitted to testify fully as to what was said and done by appellant and young Crowley at the time the receipt was left with him. (3) The third point made by defendant is wholly without merit. The conversations of the various parties mentioned, about putting receipt and money in the Bolckow bank, were not competent evidence, and as the learned counsel for appellant have failed to cite a single authority in support of it, we conclude they are simply trying to " Quaker" it through. (4) Appellant's fourth point is not well taken. The evidence of the witness John Phillippi was in rebuttal of the evidence given by the appellant upon the question of settlement. (5) The order in which evidence shall be introduced is in the discretion of the trial court, and the appellate courts have uniformly declined to interfere where no substantial injury has been done. Tierney v. Spiva, 76 Mo. 279; Siebert v Allen, 61 Mo. 482; Dozier v. Jerman, 30 Mo. 216; Harvey v. Brooke, 36 Mo. 49; Johnston v. Mason, 27 Mo. 511. The citation of the above authorities disposes of appellant's fifth point, even if the evidence was introduced out of order, which we do not admit. It was clearly in rebuttal of the case made by the defendant. (6) If error was committed by the court in changing plaintiff's instructions one and three, it was error in favor of the defendant and he cannot complain. Breckenridge v. Ins. Co., 87 Mo. 62. The court did not change the issues by the giving of instructions. The instructions were given upon the theory of the case as it was tried by both parties. A case cannot be tried on one theory below and an entirely different one in the appellate court. Duff v. Railroad, 19 Mo.App. 380-391; Walker v. Owens, 79 Mo. 563; Whetstone v. Shaw, 70 Mo. 575. The fact that plaintiff was permitted to recover less than three hundred dollars is not an error as against appellant. Alderman v. Cox, 74 Mo. 78. (7) Appellant's motion for a new trial, on the ground of newly-discovered evidence was properly overruled. The evidence of the witness was...