Gray v. Novinger

• Decision Date: 29 April 1912
• Citation: 147 S.W. 1128,166 Mo.App. 85
• Parties: J. A. GRAY, Respondent, v. ISAAC A. NOVINGER, Appellant
• Court: Kansas Court of Appeals

147 S.W. 1128

166 Mo.App. 85

J. A. GRAY, Respondent, v. ISAAC A. NOVINGER, Appellant

Court of Appeals of Missouri, Kansas City

April 29, 1912

Appeal from Adair Circuit Court.--Hon. Nat. M. Shelton, Judge.

AFFIRMED.

Judgment affirmed.

Campbell & Ellison and P. J. Reiger for appellant.

Smoot & Cooley and Weatherly & Frank for respondent.

OPINION

ELLISON J.

Plaintiff instituted this action to recover a commission alleged to be due him as defendant's agent in the sale of a herd of thoroughbred registered cattle. The judgment in the trial court was for the plaintiff.

There was evidence tending to prove that plaintiff brought one Hinson and defendant together in a prospective trade or exchange and that defendant authorized plaintiff, as his agent, to submit to Hinson a proposition to trade his herd of cattle for Hinson's farm encumbered by a mortgage for $ 3800, defendant to pay Hinson $ 500 in addition. That plaintiff then got the parties together and Hinson accepted the offer, but without proper excuse or any good reason defendant refused to consummate the trade. The evidence in defendant's behalf in substantial part was contrary to that of plaintiff, and as the jury have found for plaintiff, we must affirm the judgment unless there be error in the conduct of the trial.

The first objection is that plaintiff was allowed to testify that he made an unsigned memorandum of the terms of defendant's proposition to be submitted to Hinson. This was drawn out on the cross-examination of plaintiff, and besides, we think, in view of the record, it had no bearing on the result.

The next complaint relates to plaintiff's instruction number one, purporting to cover the whole case and directing a verdict on the matters therein submitted, but omitting the issue made by the pleadings that Hinson was able and willing to carry out the proposition he accepted. The instruction does not, in terms, submit that hypothesis, of Hinson being able to carry out his part of the proposition, though it does submit his being willing to do so. His ability to do so seems to have been assumed throughout the trial and defendant's first instruction is drawn along the same line with plaintiff's. Considering the instructions together, it leaves defendant without room for complaint.

The next objection relates to the action of the trial court on the subject of dual agency; it being contended by defendant that plaintiff was acting as the agent for both parties. Dual agency was not pleaded, and in order to avail defendant as a defense, it should have been: Reese v. Garth, 36 Mo.App. 641.

We are cited by defendant to Sprague v. Rooney, 104 Mo 349,...