Dozier v. Jerman

• Decision Date: 31 March 1860
• Citation: 30 Mo. 216
• Parties: DOZIER, Respondent, v. JERMAN, Appellant.
• Court: Missouri Supreme Court

30 Mo. 216

DOZIER, Respondent,

v.JERMAN, Appellant.

Supreme Court of Missouri.

March Term, 1860.

1. Though amendments should be liberally allowed in furtherance of justice, yet the discretion of the inferior courts will not be controlled by the supreme court unless it has been manifestly abused.

2. Where a defendant prays the court on the trial to be allowed to amend his answer, and the court refuses to grant the motion, but allows the defendant to introduce evidence in support of the issue raised by the proposed amendment, and fully submits said issue to the jury by the instructions given, the discretion of the court in the allowance of amendments is not abused.

3. A party wishing to avail himself of error in the giving or refusing of instructions must take his exception at the time they are given or refused; it is too late to make his objections for the first time on a motion for a new trial.

4. It is discretionary with the courts to relax the rules of evidence as to the order of examining witnesses or introducing testimony; material testimony should not be excluded because offered after the testimony is closed, unless it has been kept back by trick, and the opposite party would be deceived or injuriously affected by it.

5. Wherever the jury is authorized, in a case of unliquidated damages, to allow interest in estimating the damages, the interest is not recoverable as such in addition to the damages assessed by the jury, but must enter into the estimate made by the jury and be found as a part of the damages assessed.

Appeal from St. Louis Court of Common Pleas.

This was an action to recover damages for an alleged wrongful sale, by the direction of the defendant, of certain real estate belonging to the plaintiff, and conveyed by him to a trustee to secure a certain note for $2,140 executed by the plaintiff and held by the defendant. The plaintiff sets forth in his petition that when the note became due he was unable to pay it, and entered into an agreement with the defendant, through the agent of the latter, for an extension of six months; that in violation of this agreement, although a portion of the consideration therefor was paid and all of it offered to be paid, defendant directed the trustee to make sale of the property; that sale was accordingly made, while the plaintiff was absent dangerously ill, at a great sacrifice. The facts in evidence, so far as they bear on the questions decided by the court, are sufficiently set forth in the opinion of the court.

McClellan, Moody & Hillyer, for appellant.

I. The court erred in refusing the amendment asked. The matters embraced in it constituted a defence. The verdict returned by the jury was either void for uncertainty, or it was good for the principal amount stated, and the item of interest should have been treated as surplusage. The court erred in computing the interest. The court had no right to determine what “sale” the jury intended, or its date. Jury could not give interest as such. As to the power of the court to amend a verdict, see 3 Brev. 113; 8 Ired. 528; 1 H. Bl. 79; 1 Mass. 153; 6 N. H. 518; 4 Call, 522; 3 Yerg. 327; 1 Monr. 52; 3 Comst. 327; 12 Ill. 61; 2 Greene, 191; 19 Mo. 239; 2 Maine, 37. The court also erred in giving and refusing instructions. The agreement between Dozier and Jefferson Jermain, the alleged agent of defendant, was usurious; it was therefore binding on neither party. (5 H. & Jo. 193; 17 Mass. 258; 13 Pick. 518; 7 N. H. 326; 5 Mass. 395; 4 N. H. 285; 4 Dall. 298, 308; 6 Binn. 321; 4 S. & R. 159; 2 Id. 159; 14 Johns. 146; 5 Day, 452; 8 Johns. 304; 4 Rawle, 185; 2 Shepl. 404; 14 Mass. 322; 15 Mass. 39; 1 Binn. 118; 4 Halst. 352; 7 Mo. 585.) The court erred in permitting Alton Long to testify after the plaintiff and defendant had both rested.

S. T. & A. D. Glover, for respondent.

I. The proposed amendment on the trial was properly refused. The court committed no error in giving or refusing instructions. The evidence fully sustained the verdict.EWING, Judge, delivered the opinion of the court.

During the progress of the trial the defendant offered to amend the answer (it having been already once amended on the trial) by alleging the existence of certain encumbrances on the land in question; that the plaintiff was the owner in fee of but an undivided half thereof, and that he failed to make known said encumbrances to the defendant pending the negotiation for an extension on the note. The amendment being refused, exceptions were taken, and this ruling of the court is one of the errors assigned. It might be sufficient to say, on this point, that the conceded discretion of the courts in the matter of amendments on the trial, even though the proposed amendment may have contained matters of defence to the action, was not, in our opinion, wrongly exercised in this instance, and does not call for our interference. The spirit of our code, it is true, favors a liberal practice in this respect, and amendments should be encouraged in furtherance of justice, but the discretion of inferior courts will not be controlled by this court unless it appears to have been manifestly abused. Moreover, the first amendment embraced substantially the matters set up in the one refused as to the encumbrances; and the only additional allegations related to the plaintiff's knowledge of them at the time of the negotiation respecting the note, his failure to communicate them to the defendant, and that he was the owner in fee of but one-half of the land. These facts defendant relies upon as a defence to the action, and he alleges that they gave him the right to repudiate the contract, or exonerated him from any obligation to accept it. But notwithstanding the amendment was refused, it seems that the defendant had the benefit of it on the trial, and in the instructions of the court, as fully as if it had been formally incorporated into his answer, and thus made a part of his defence; for it appears from the bill of exceptions that the facts alleged in the proposed amendment were disclosed in the testimony of witnesses, particularly that of Mr. McClelland, and that they were allowed to go before the jury without objection. The most material of these facts consisted of the agreement in writing between the plaintiff and one Watkins, bearing date July, 1854, by which it appears that they were the joint purchasers of the land from Mitchell; that plaintiff was the owner of but one undivided half thereof, and that in consideration of the sale of Watkins to Dozier of one-half (his interest) of the property, Dozier assumed the total liability to Mitchell for the purchase money, and also became liable to Watkins for additional sums on other accounts; also sundry judgments against the plaintiff for various sums, which appear to have been unsatisfied at the date of the...