Greer v. Parker

• Decision Date: 31 October 1884
• Parties: GREER et al. v. PARKER, Appellant.
• Court: Missouri Supreme Court

85 Mo. 107

GREER et al.

v.PARKER, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Johnson Circuit Court.--HON. N. M. GIVAN, Judge.

AFFIRMED.

S. P. Sparks and Smith & Krauthoff for appellant.

(1) Plaintiffs' first instruction is erroneous. It did not correspond with the issues joined. Iron Mt. Bank v. Dickson, 62 Mo. 70; Capital Bank v. Armstrong, 62 Mo. 59; Bruce v. Sims, 34 Mo. 246. The second instruction for plaintiffs was erroneous in stating that the burden of proof shifted to defendant when the jury were convinced by a preponderance of evidence of a certain state of facts. The burden is on defendant only, when it is necessary to plead an affirmative defence. 1 Greenleaf's Ev., sec. 64. Plaintiffs' third instruction was erroneous in assuming that there was proof of a request to pay after the date of Parker's visit to St. Louis, October 4, 1881; if there had been such proof it was error to single it out and tell the jury if they so found the verdict should be for plaintiffs. Kæning v. Life Association, 3 Mo. App. 596; Gerren v. Railroad, 60 Mo. 405. The fourth instruction was also erroneous. It is error to use the words preponderance of evidence in an instruction. Clark v. Kitchen, 52 Mo. 316. (2) Defendant's sixth instruction correctly stated a controlling principle of law in the case. Defendant was not liable for any payments made on account of these contracts by Billingsley & Nanson without a precedent request or a subsequent agreement to repay, for it appeared from the evidence that their only connection with the contracts was in the capacity of brokers, and that the alleged payments of Greer to them were for losses they had sustained after they had closed out the contracts. Saladin v. Mitchell, 45 Ill. 79; 1 Pars. on Con. 98; Thompson v. McCullough, 31 Mo. 224; Lapsley v. McKinstry, 38 Mo. 245. (3) The agreement of R. L. Greer to answer for the debt, default or miscarriage of Parker not being in writing was within the statute of frauds (R. S., sec. 2513), and not binding on him, and his act in suffering his money in hands of Billingsley & Nanson to be applied by them to this purpose was voluntary and cannot be the foundation of an action against Parker, the maxim volenti non fit injuria applies. Hollinsbee v. Ritcher, 49 Ind. 261; Baylies on Surety & Guar., 350; Pitt v. Passord, 8 Mees. & W. 530; Davis v. Humphrey, 6 Mees, & W. 143; Lucas v. Jeff. Ins. Co., 6 Cow. 635; Frith v. Sprague, 14 Mass. 455; Hatch v. Pegram, 21 La. Ann. 722; Randolph v. Randolph, 2 Rand. 490. (4) The failure of Philips to arrive at the hour appointed for resuming the further hearing of the case, was an unforeseen disappointment in a reasonable expectation, against which ordinary prudence, would not have afforded protection, without any element of negligence; and was such surprise as would justify the interference of this court. Fretwell v. Lafoon, 77 Mo. 26; Peers v. Davis, 29 Mo. 184. A distinction is to be made between the surprise necessary to furnish ground of new trial, and that which is to delay trial. The court was asked to delay the trial a few hours, which could not have prejudiced the plaintiffs. Hillard on New Trials, 425 (1886); Williams v. Weatherby, 1 N. H. 18. The surprise was clearly established and the consequences could have been avoided by laying the case over a few hours. Defendant nor his attorneys were guilty of any laches. They applied for relief at the time, and the consequences could have been avoided on another trial; in such cases courts of last resort will interfere. Delmas v. Martin, 39 Cal. 555; Patterson v. Ely, 19 Cal. 28. Courts of last resort will not permit an opposite party to perpetuate a fraud through the negligence of an attorney. Spaulding v. Meir, 40 Mo. 176; State v. Lavis, 11 Mo. 438. This court ordered a new trial where an attorney had been surprised by misconstruction of decision of this court as to admissibility of secondary evidence. Boyce v. Mooney, 40 Mo. 104. Where a witness absented himself after subpœna on him, a new trial must be granted on payment of costs. Ruggles v. Hall, 14 John. 112. The statute guarantees to every party to a civil action the right to defend in person or by attorney. R. S., sec. 3564. In the administration of justice, counsel are as much a part of the court as the judge who presides over the proceedings. The duties of the bench and bar differ in kind, not in purpose. The argument of a case is as much a part of the trial as the hearing of evidence. Brown v. Swinford, 44 Wis. 282; Wynn v. Lee, 5 Ga. 237; Meredith v. People, 84 Ill. 480.

O. L. Houts and John J. Cockrell for respondents.

Plaintiffs' first instruction was correct. The facts sustain it and it corresponds with the petition. If there was a variance between the petition and the evidence, the proper course to take advantage of it was not pursued. Briggs v. Munchon, 56 Mo. 467; Ely v. Porter, 58 Mo. 158; Wells v. Sharp, 57 Mo. 56; Bennett v. McCanse, 65 Mo. 194. Plaintiffs' second instruction was correct. The burden of proof always rests on the party undertaking to prove any fact. Whar. on Ev., sec. 357, p. 307; Nichols v. Winfrey, 79 Mo. 550. For the same reasons plaintiffs' fourth instruction is correct. Where defendant confesses and avoids the burden is on him. St. Louis Tow Co. v. Orphans' Ins. Co., 52 Mo. 529. The words, ““preponderance of evidence,” as used in plaintiffs' instructions, are proper. Gay v. Southworth, 113 Mass. 333; Sackett on Instructions, 39, 89, 114, 126, 184, 213, 318; 1 Wharton on Evidence, sec. 357, p. 306; Huchberger v. Ins. Co., 5 Bissell 106; Hanken v. Squeres, 5 Bissell 186; Fullerton v. Bank, 1 Pet. (U. S.) 616. The sixth instruction asked by defendant was properly refused. It is contradictory in itself and does not make good sense. Defendant did not object to plaintiffs' instructions at the time of the trial. Unless objections are made and exceptions saved at the time, this court will not review them. Wells v. Zalle, 59 Mo. 509; Walsh v. Allen, 50 Mo. 181; Koegel v. Givens, 79 Mo. 77; Shaw v. Potter, 50 Mo. 281; Van-Cleve v. Gilstrap, 50 Mo. 412; Mattingly v. Moranville, 11 Mo. 604; Devlin v. Clark, 31 Mo. 22; Calvert v. Alexander, 33 Mo. 149; Case v. Fogg, 46 Mo. 44. There is no ground for reversal, because of the absence of one of defendant's counsel. He was represented by competent counsel, the same who appears in this court. The granting of continuances is a matter wholly within the discretion of the trial court. This is particularly true as applied to the action of the court in refusing to wait for absent counsel. Jacob v. McLean, 24 Mo. 40; Gheike v. Jod, 59 Mo. 42.

NORTON, J.

This a suit to recover from defendant the sum of $2,340, alleged to have been paid on the fourth of October, 1881, by plaintiffs, at the request of and for the use of defendant, to Billingsley & Nanson, a firm doing business in the city of St. Louis. The answer denies this allegation. On the trial, plaintiffs had judgment for the sum claimed, with interest, from which defendant has appealed.

No objections were made nor exceptions saved to the reception or rejection of evidence, nor were any exceptions saved to the action of the court in giving and refusing instructions, except to its action in refusing the sixth instruction asked by defendant, which is as follows:

“The court instructs the jury that defendant, Parker, was not liable on the contracts of purchase read in evidence for any loss Billingsley & Nanson may have sustained thereon, unless he agreed to and with them to become liable therefor, and if the jury find that the sum of money mentioned in the petition was paid by plaintiffs to Billingsley & Nanson to indemnify them for any loss they may have sustained by virtue of said contracts after such loss had occurred, you will find for defendant, unless you find and believe from the evidence that defendant, Parker, requested Billingsley & Nanson to pay same or agreed to and with them to become liable therefor.”

This instruction was properly refused, first, because it was misleading in referring to a liability arising on contracts of purchase read in evidence when the record, in point of fact, does not show that any contracts were read in evidence; and, second, it entirely ignores the question as to whether plaintiffs paid money to Billingsley & Nanson at defendant's request and for his use, which was the only real matter in issue under the pleadings.

It appears from the record that the introduction of evidence was concluded on Saturday evening, the seventeenth of February, 1883, and the cause was then, at the request of defendant's counsel, and by consent of plaintiffs, postponed to Wednesday morning, February 21, on which day at ten o'clock the jury came, and the cause coming on to be heard on argument, S. P. Sparks, one of defendant's attorneys, asked that the argument be postponed till the next day, because of the absence of John F. Philips, his co-counsel, to whom had been intrusted the management of the case, including the drawing of instructions, argument to the jury, etc.; that said Philips had by misadventure failed to make railroad connections and...