Griswold v. Haas

• Decision Date: 16 November 1909
• Citation: 122 S.W. 781,145 Mo. App. 578
• Parties: GRISWOLD v. HAAS.
• Court: Missouri Court of Appeals

122 S.W. 781

145 Mo. App. 578

GRISWOLD v. HAAS.

St. Louis Court of Appeals. Missouri.

November 16, 1909.

Rehearing Denied November 30, 1909.

1. PRINCIPAL AND AGENT (§ 22)—PROOF OF AGENCY—DECLARATIONS OF AGENT.

Agency cannot be proved by the declarations of the agent to third parties.

2. PRINCIPAL AND AGENT (§ 21)—PROOF OF AGENCY—COMPETENCY OF AGENT.

An agent is competent, unless disqualified for some other reason, to prove the agency.

3. APPEAL AND ERROR (§ 931)—EXCEPTIONS TO ADMISSION OF EVIDENCE—SUBSEQUENT ADMISSION OF EVIDENCE—PRESUMPTIONS.

While, in a trial before a jury, the subsequent admission of evidence theretofore ruled out would have done away with the exception taken, in a trial before the court without a jury it must be assumed, on appeal, that the court determined the case on the theory announced in ruling out the testimony.

4. PLEADING (§ 395)—VARIANCE—CAUSE OF ACTION SUED ON—RECOVERY.

Though the Code has abolished the distinction between the forms of action, and though one can waive the tort and sue in assumpsit, a plaintiff cannot sue upon one cause of action and recover upon another.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by P. A. Griswold against Max Haas. Judgment for plaintiff, and defendant appeals. Reversed.

The plaintiff, respondent here, under appointment as commissioner by the court, advertised and auctioned six bonds in an electric railway, light, and power company; the bonds having come into the possession of the circuit court of the city of St. Louis through plaintiff as its commissioner, and the court having ordered a sale thereof. The sale was advertised to take place; the conditions being a cash payment of $15 at the time of the sale, and balance to be paid when sale was approved by the court. The petition or statement in the case, the case having been originally instituted before a justice of the peace, after stating these facts, set out: That, at the sale, the defendant being the highest and best bidder for the bonds, they were struck off and sold to him for $276; that defendant then paid to plaintiff $15, the cash payment required; that the sale was afterwards approved by the court; that afterwards plaintiff made a tender of the bonds to the defendant, demanding the balance, $261, but defendant refused to pay that or receive the bonds. The statement further avers that plaintiff is now, and has ever been, ready to deliver the bonds to the defendant upon payment of the purchase price, and that afterwards the circuit court ordered plaintiff to institute legal proceedings to recover the balance of the purchase price. Judgment is prayed for the $261 and interest. Judgment going against defendant in the justice's court, he appealed to the circuit court. On a trial there before the court, a jury having been waived, these facts were developed: Plaintiff, preliminary to the trial, stated that he had the bonds in court and tendered them to defendant in open court. Tender does not appear to have been accepted. Being sworn as a witness in his own behalf, plaintiff offered in evidence the files of the case in the course of which the bonds had come into his possession by order of the court as commissioner. The abstract states that the files themselves were offered in evidence, and the bill of exceptions calls for their insertion; but they are not in the abstract. Sufficient, however, appears in the abstract to show beyond controversy what these files contain, so far as is necessary to understand the facts in this case.

Plaintiff testified, with these files before him, that he had offered these bonds for sale on the date set out in the petition in this case, and that at the sale the defendant, Haas, was the highest and best bidder for them at the price set out in the petition here filed. Plaintiff further testified that the sale was made, and he had so announced it at the time, subject to the approval of the court. After bidding off the bonds, defendant deposited $15 with him, and he reported the sale to the court, and it was approved. Thereupon he notified defendant, who declined to complete the purchase and pay the balance, tendered the bonds to defendant, and demanded the money. He refused to receive the bonds or to pay the money, and it had never been paid. The balance due and unpaid is $261. On cross-examination plaintiff stated: That, while he could not say who all were present at that sale, he remembered defendant being present, and also Mr. Denvir. He first read the advertisement, and then called for bids, and there were two bidders, Mr. Denvir and defendant, and the defendant's bid was the last and highest. That he struck the bonds off to Mr. Haas and asked him (Haas) who was the purchaser. Haas said, "G. F. McLain." That thereupon he made his report to the court, and that report set out that the sale was to G. F. McLain for the price named. Plaintiff further testified: That, after the approval of the sale, he went to Mr. McLain, who repudiated any interest in the matter, said he knew nothing about it, never authorized Haas to use his name, never put up the $15 that was bid, and that Mr. Haas was not his agent in the matter; that thereupon he (plaintiff) went to Haas and made a demand upon him, and he refused to take the bonds. He repeated that when the bonds were knocked down, and Haas was asked for the name of the purchaser, he gave the name of G. F. McLain as the purchaser. Haas said he bought them for G. F. McLain. He did not say that he was buying them for himself. All that occurred was that witness asked him who was the purchaser, and he said, "G. F. McLain." On redirect examination plaintiff was asked, when defendant bid on the bonds, whether he bid as purchaser himself or as representing some one else, and witness answered, "Well, there was nothing said about representing any one until I asked for the name of the purchaser." That was after the bidding was closed, and after he had accepted the bid made by defendant. Plaintiff then put Mr. McLain on the stand as a witness; but on the suggestion of the court that Mr. McLain should be called in rebuttal, and not in chief, which the court suggested after Mr. McLain had testified, plaintiff withdrew him.

Plaintiff thereupon resting, defendant was examined as a witness in his own behalf. He testified: That he appeared at the sale of these bonds; that to the best of his recollection he bid on the bonds, and they were knocked down to him; that plaintiff, apparently acting as auctioneer, then asked him for whom...