Fullerton v. Carpenter

• Decision Date: 09 December 1902
• Citation: 71 S.W. 98,97 Mo. App. 197
• Parties: FULLERTON v. CARPENTER.
• Court: Missouri Court of Appeals

71 S.W. 98

97 Mo. App. 197

FULLERTON v. CARPENTER.

Court of Appeals at St. Louis, Missouri.

December 9, 1902.

AGENT—PROCURING LOAN—RIGHT TO COMMISSIONS —APPEAL—WEIGHT OF EVIDENCE—OBJECTIONS—WAIVER—MOTION FOR NEW TRIAL.

1. The jury, or the court sitting as a jury, is the sole judge of the weight of evidence, and their findings will not be reviewed unless there is no substantial evidence to support the verdict, or it is obvious that the verdict is the result of passion, prejudice, or corruption.

2. Where the only objection to the admission of certain evidence was in the words "I object," no grounds being stated, the ruling thereon will not be reviewed.

3. Where an instruction was objected to, but it was not called to the attention of the trial court on the motion for new trial, the objection will be deemed to have been waived.

4. Where an executor, representing that he has authority to mortgage certain property, offers an agent a certain commission to secure a loan, and such agent produces a person able and willing to make the loan, but who afterwards declines to make it solely on the ground of the executor's want of authority to execute the mortgage, the agent has earned and is entitled to his commission.

Appeal from St. Louis circuit court; William Zachritz, Judge.

Action by Humphrey Fullerton, trustee, against James W. Carpenter. From a judgment for defendant, plaintiff appeals. Affirmed.

Henry M. Post, for appellant. Skinker & Flitcraft, for respondent.

BLAND, P. J.

The motion for new trial is as follows: "Now comes Humphrey Fullerton, testamentary trustee, plaintiff in the above-entitled cause, and moves the court to set aside its verdict and decree rendered in the above-entitled cause heretofore, to wit, on July 5, 1901, and grant him a rehearing and new trial. And as grounds for said motion plaintiff alleges the following: First. Said verdict and judgment are against the law. Second. They are against the evidence. Third. They are against the law and the evidence. Fourth. They are against the weight of evidence. Fifth. Said verdict and judgment should have been in favor of plaintiff and against defendant. Sixth. The court erred in excluding proper evidence. Seventh. The court erred in admitting improper evidence. Eighth. (1) It is admitted by the pleadings that defendant Carpenter was to be paid $2,500 commission for procuring a loan of $100,000. (2) The evidence shows that said defendant, as agent for plaintiff, made offer to the St. Louis Trust Company of the mortgage on the McPherson tract of land, belonging to the estate of J. S. Fullerton, and referred to in the evidence, as security for the loan to be made by said St. Louis Trust Company to plaintiff; that said Carpenter made no further offer. The evidence shows that said offer was positively and finally refused by said trust company. (3) The evidence further shows: (a) That said loan was not given until an order and decree were entered by the St. Louis circuit court authorizing and empowering plaintiff, as trustee under the will of J. S. Fullerton, to give said mortgage. (b) That said order and decree were the sine qua non conditions for obtaining said loan, and without which said order and decree said loan would have been refused. (c) The evidence shows that all the negotiations and agreements relating to the procurement of said order and decree originated and were carried on by and between plaintiff and his attorney on the one part and the St. Louis Trust Company and its attorney on the other part after the offer of said Carpenter had failed, and wholly independent of said Carpenter; that he neither procured nor suggested the proceedings for obtaining said order and decree, nor had he anything to do with the agreement compassing said proceedings and order and decree. (4) Plaintiff was not bound, directly or by implication, under his contract with defendant, to obtain said order and decree. (5) If defendant failed to procure said loan, then, under the case as made by the pleadings, he was entitled to no compensation. The court should have found the above-recited facts and conclusions by verdict and judgment for plaintiff. By its verdict and judgment for defendant, it must have found to the contrary, and said verdict and judgment constituted manifest error, for which plaintiff is entitled to rehearing and new trial of said cause."

The first, second, third, fourth, and fifth grounds of the motion amount to this: that the verdict is against the weight of the evidence, and for that reason should have been for the plaintiff. The jury, or the court sitting as a jury, is the sole judge of the weight of the evidence, and their findings will not be reviewed on appeal, unless there is no substantial evidence to support the verdict, or it is obvious that the verdict is the result of passion, prejudice, or corruption. Culbertson v. Hill, 87 Mo. 553; Hull v. Railway Co. (K. C.) 60 Mo. App. 593.

In respect to the sixth ground,—"that the court erred in excluding proper evidence,"— we find but one objection made by plaintiff to the evidence offered by defendant. The bill of exceptions shows that the evidence was simply "objected to." No grounds for the objection were assigned, nor was any exception saved to the ruling of the court on the objection. Unless the grounds of an objection to the admission of evidence are specified when it is made, the objection will not be considered on appeal. Lumber Co. v. Rogers, 145 Mo. 445, 46 S. W. 1079; Kansas City v. Marsh Oil Co., 140 Mo. 458, 41 S. W. 943.

In respect to the seventh ground, — "that the court admitted improper evidence," — the bill of exceptions fails to show that any evidence was admitted by the court to which plaintiff saved an exception.

Only one instruction was given. This was objected to when given, but the court's attention was not called...