Greer v. Parker

• Court: United States State Supreme Court of Missouri
• Writing for the Court: NORTON
• Citation: 85 Mo. 107
• Parties: GREER et al. v. PARKER, Appellant.
• Decision Date: 31 October 1884

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.

[85 Mo. 108]

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,

[85 Mo. 109]

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

[85 Mo. 110]

undertaking to prove any fact. Whar. on Ev., sec. 357, p. 307; Nichols v. Winfrey, 79 Mo....