Dayton Folding Box Company v. Danciger Brothers

• Decision Date: 31 May 1909
• Citation: 119 S.W. 997,138 Mo.App. 17
• Parties: DAYTON FOLDING BOX COMPANY, Appellant, v. DANCIGER BROTHERS et al., Respondents
• Court: Kansas Court of Appeals

119 S.W. 997

138 Mo.App. 17

DAYTON FOLDING BOX COMPANY, Appellant, v. DANCIGER BROTHERS et al., Respondents

Court of Appeals of Missouri, Kansas City

May 31, 1909

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

AFFIRMED.

Judgment affirmed.

Rosenberger Taylor & Reed and Geo. H. English, Jr., for appellant.

(1) The oral directions of the court did not constitute prejudicial error. Walsh v. Drayage Co., 40 Mo.App. 339; Overbeck v. Mayer, 59 Mo.App. 289; Hogel v Lindell, 10 Mo. 483; Fairgrieve v. Moberly, 29 Mo.App. 141; McPherson v. Railroad, 97 Mo. 253; State v. Good, 132 Mo. 114; State v. Moore, 117 Mo. 402. (2) If error was committed, it was waived by defendants' failure to object or except to it. State v. DeMosse, 98 Mo. 340; State v. Moore, 117 Mo 402; Fairgrieve v. Moberly, 29 Mo.App. 141; State v. Miles, 199 Mo. 200.

David I. White and I. J. Ringolsky for respondents.

(1) It is reversible error for the court to instruct the jury, so as to impress the jury with the opinion that the court was on the plaintiff's side, and to interfere by its remarks, and to prominently call the jury's attention to one of the instructions asked for by the plaintiff, without telling them to read all of the instructions, and to thus interfere with an unbiased and fair deliberation of the law and the evidence by the jury. Neff v. Cameron, 213 Mo. 371; State v. Knowles, 185 Mo. 177; Stetzler v. Railroad, 210 Mo. 711; State v. Nelson, 181 Mo. 340; State v. Potter, 125 Mo.App. 473; State v. Etherly, 185 Mo. 182. (2) The affidavits attached to the motion for a new trial show that counsel for the defendants objected to the conduct of the court in communicating with the jury, and saved exceptions to such conduct, and asked that the jury be discharged, but even if no exceptions were saved, as stated by appellant's counsel, the granting of a new trial by the court below was a matter entirely within its judicial discretion, and the rule of law as to the saving of exceptions is different where a new trial has been granted and where an appeal is perfected from the action of the court in overruling a motion for a new trial. Schuette v. St. Louis Transit Co. 108 Mo.App. 21.

OPINION

ELLISON, J.

Plaintiff's petition in this cause was in two counts, one for contract price of goods, wares and merchandise, and the other on quantum meruit. The verdict was for the plaintiff on the latter count. Defendants filed motion for new trial which the court sustained and plaintiff has appealed from that order.

It appears that after the instructions had been read and the case argued, the jury had been in their room for about two hours without announcing an agreement on a verdict, the court sent for them when the following took place: The court "asked the jurors if they had been able to agree on a verdict and they said 'No.' The court thereupon asked them if there was any prospect of their being able to agree, and several of the jurors said that they lacked one of being able to agree. Thereupon the court said to them: 'Gentlemen, are you aware that it is not necessary that you should find the full contract price of these goods?' Several of the jurors answered 'No.' The court then said that they might read instruction No. 3 upon that subject. Thereupon some of the jurors said they thought they could agree."

Instruction No. 3, referred to by the court, was the instruction informing the jury that they could find against plaintiff on the contract and yet, though the goods were not as they should have been under the contract, if defendants kept them the jury could find for plaintiff under the...