Frost v. Jensen, 19968.

• Decision Date: 03 November 1941
• Docket Number: No. 19968.,19968.
• Citation: 155 S.W.2d 553
• Parties: FROST v. JENSEN.
• Court: Missouri Court of Appeals

155 S.W.2d 553

FROST v. JENSEN.

No. 19968.

Kansas City Court of Appeals. Missouri.

November 3, 1941.

Appeal from Circuit Court, Atchison County; Ellis Beavers, Judge.

"Not to be published in State Reports".

Action by I. K. Frost, trustee, against N. P. Jensen on a note. From a judgment for defendant, plaintiff appeals.

Reversed and remanded for new trial.

Gore & Gore, of Rockport (Ben Phillip [of Culver, Philip Kaufmann & Smith], of St. Joseph, of counsel), for appellant.

Clayton W. Allen, of Rockport, for respondent.

BOYER, Commissioner.

Plaintiff sued to recover on a note for the sum of $5,600, together with interest according to its terms. The note was dated October 16, 1931, and payable to one Rosenbaum, trustee of a private trust carrying the name of John Lingo. Plaintiff is the successor trustee of said trust.

The answer of defendant to the petition of plaintiff, the sufficiency of which is not questioned, admits that he executed the note. The answer further pleads a composition and settlement of debts owing by defendant to the Mutual Benefit Life Insurance Company and to plaintiff, by virtue of which the note in question was fully paid and discharged and defendant relieved from any liability to the plaintiff by reason of said contract of composition. The reply specifically denies that plaintiff and defendant and the Mutual Benefit Life Insurance Company ever entered into any agreement or composition affecting the note in suit.

The case was submitted to a jury with instructions offered by both parties and the verdict was for defendant. Plaintiff duly appealed, assigns errors, and under points and authorities insists (1) that there was a total failure of proof of the defense pleaded, and that the court should have given plaintiff's requested instruction for a directed verdict offered at the close of the case; and (2) that there was error in the giving of defendant's Instructions A and B. The principal questions on appeal arise on these assignments.

Respondent replies to the first assignment that appellant waived his right to question the sufficiency of the evidence by submitting the case to the jury upon instructions obtained at his request and is estopped to raise the question on appeal.

The record shows that at the close of the testimony plaintiff offered and the court refused to give Instruction No. 4, directing a verdict for plaintiff upon a finding that defendant executed the note. This instruction was refused and plaintiff saved his exception. The record further shows that the court on behalf of plaintiff gave the following instructions:

"Instruction No. 1

"The court instructs the jury that if you believe from the evidence that the defendant executed the note sued on, your finding will be for plaintiff, unless you believe from the evidence that the debt represented by said note has been settled and paid, as alleged by defendant in his answer; that it devolves upon defendant to prove to your satisfaction by a preponderance of the evidence that the debt has been settled and paid.

"If you find for plaintiff you will assess his damages at the sum of $5000.00 with 6% interest from October 16, 1931, to April 16, 1932, and at 8% thereafter, compounded annually."

"Instruction No. 2

"The court instructs the jury that if you find and believe from the evidence, that defendant by his acts and conduct led plaintiff to believe that Wm. N. Bartlett and Company was authorized to consummate a compromise with plaintiff on such terms as Wm. N. Bartlett and Company might propose, then in that event if you find that the said Wm. N. Bartlett and Company effected a compromise for defendant with plaintiff and that the note sued upon and in evidence was not included and discharged thereby, then you shall find for plaintiff."

Over the objection and exception of plaintiff the court gave instructions lettered A and B on behalf of defendant, which are as follows:

"Instruction No. A

"The court instructs the jury that if you find and believe from the evidence that on or about the 27th day of September, 1935, the defendant was heavily indebted, and was insolvent, or in an embarrassed financial condition, and that the Mutual Benefit Life Insurance Company, a corporation, and the plaintiff, I. K. Frost, trustee, were creditors of defendant; that at said time the said I. K. Frost, trustee, was the owner of the note sued on in this case; that on or about said time, the said Mutual Benefit Life Insurance Company and the said I. K. Frost, trustee, plaintiff herein, and this defendant entered into an agreement whereby this defendant was to pay, and did pay, to said Mutual Benefit Life Insurance Company, the sum of $1,000, and was to pay, and did pay, or cause to be paid to the plaintiff in this case, the sum of $500, and that in consideration of said payments and said mutual agreement, if you so find, the said Mutual Benefit Life Insurance Company agreed that it would accept a smaller sum from this defendant than was legally due it, and that by the terms of said agreement, if you so find, the said I. K. Frost, trustee, agreed to cancel all obligations that this defendant then owed the said plaintiff, including the note sued on in this case, if you so find, then your verdict will be for the defendant."

"Instruction No. B

"The court instructs the jury that if you find and believe from the evidence that defendant authorized Wm. N. Bartlett and Company to act for him in effecting a compromise with plaintiff, in regard to indebtedness owed plaintiff by defendant, if any, then you are instructed said Wm. N. Bartlett and Company could not exceed the authority in dealing with plaintiff granted by defendant and plaintiff was bound to ascertain the authority of said agent.

"And in this connection if you further find that plaintiff knew of the limit of authority which said agent had in effecting a settlement of the note sued upon and in evidence, and if you further find that plaintiff accepted the terms offered by defendant, then the plaintiff was bound to deliver to defendant all that was required by the terms of defendant's offer."

Points 1 and 2 of appellant's brief, and the argument in support thereof, urge error in the refusal to give the peremptory instruction to find for plaintiff, and in giving Instruction A on behalf of defendant because there was no evidence to support the defense pleaded. These two points are related and may be disposed of jointly.

It is now a settled rule of appellate procedure that where plaintiff requests and obtains instructions submitting the case to the jury on the merits of an issue involved, he may not be heard to complain that the court erred in refusing to give his instruction for a directed verdict in his favor. Wissmann v. Pearline, Mo.App., 135 S.W. 2d 1, 1 loc. cit. 4, and cases cited. This has been the rule ever since the decision in the case of Everhart v. Bryson, 244 Mo. 507, 149 S.W. 307, and the distinction between the position of plaintiff and defendant in respect of waiver of the right to object to the ruling on a demurrer, after the case is submitted under instructions upon the issue, is discussed in this case and clearly pointed out in other cases following it.

The complaint against Instruction A given for defendant is that there was no evidence to support the finding which the jury was authorized to make as the basis of a verdict for defendant. The instruction is in accord with the defense pleaded in the answer; that is, that the note sued upon was included in the settlement made. Plaintiff's Instruction No. 1 submitted to the jury the question of whether or not the note in suit was settled and paid "as alleged by defendant in his answer." This, in effect at least, submitted the same issue as that submitted by defendant's instruction. If Instruction A is error, it was invited by the plaintiff. Because of this as...