Gwin v. Waggoner

• Decision Date: 04 March 1889
• Citation: 11 S.W. 227,98 Mo. 315
• Parties: Gwin v. Waggoner et al., Appellants
• Court: Missouri Supreme Court

11 S.W. 227

98 Mo. 315

Gwin v. Waggoner et al., Appellants

Supreme Court of Missouri

March 4, 1889

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Reversed and remanded.

Karnes & Krauthoff, with Gates & Wallace, for appellants.

(1) The second instruction given for the plaintiff totally ignored the defense and the evidence adduced in support of it. The case was presented in a one-sided aspect. Unwarrantably, the defendants were saddled with the burden of proof and declared to rest under a presumption and a prima-facie case, and then to make the resulting prejudice to their side of the case complete, no notice is taken of their defense, but their evidence is treated as utterly immaterial. Gilson v Railroad, 76 Mo. 282, 286; Sullivan v Railroad, 88 Mo. 169, 182. (2) Under the written evidence, the verdict should have been for the defendants. This written evidence consisted, in part, of the agreement of December 12, 1880. By its terms this agreement is a complete defense to this action. It is true, the law permits the plaintiff to overcome the effect of this agreement by proof that he was fraudulently induced to make it, and that it was contrary to the true agreement between the parties. Not only is the burden of proving these facts upon the plaintiff, but he must do so by strong and convincing evidence, indubitably establishing the fraud. Otherwise, it is conclusive, and its terms cannot be varied or abrogated.by parol. 2 Whart. Ev sec. 932, and cas. cit. in notes; Dunn v. White, 63 Mo. 181, 185; Langley v. Brown, 2 Atk. 195, 202; Greenfield's Estate, 14 Pa. St. 489; Faucett v. Currier, 115 Mass. 20. This fraud must be shown by "distinct and convincing proof" (Greenfield's Estate, supra) which must be "clear, precise and indubitable." Martin v. Berens, 67 Pa. St. 459, 463; Bailey v. Smock, 61 Mo. 213, 218.

C. O. Tichenor and A. Comingo for respondent.

(1) The instructions, given on the part of the plaintiff, present the issues made by the pleadings in the case; and they are in harmony with those given at the instance of defendants. The second of plaintiff's instructions tells the jury that it devolves on defendants to prove, by a preponderance of evidence, the defense set up in their answer, and that the general warranty deed from plaintiff to defendant was prima-facie evidence that the transaction was a sale. Such was its character. Prima-facie evidence is such as, in judgment of law, is sufficient to establish a given fact; and which, if not rebutted, is sufficient for that purpose. Kelly v. Jackson, 6 Peters, 622; Baxter v. Ins. Co., 7 Mass. 275; Lancaster v. Ins. Co., 62 Mo. 121; Flournoy v. Worden, 17 Mo. 435; 1 Starkie's Evidence, p. 544. (2) It was the province of the jury to find their verdict upon consideration of all the evidence in the case, and not upon the written evidence alone. This they did, and their verdict is abundantly supported by the evidence. Even if it were against the weight of evidence, this court would not disturb it. To this rule there is no known exception in this state or elsewhere. Hamilton v. Berry, 74 Mo. 117; McKay v. Underwood, 47 Mo. 49; Price v. Sherrill, 49 Mo. 396.

Ray, C. J. Black and Brace, JJ., concur; Sherwood, J., dissents; Barclay, J., not sitting.

OPINION

Ray, C. J.

Plaintiff brought this action to recover a balance of fifty-five hundred dollars with interest, alleged to be due him by defendants, on account of a sale to them, of his one-fifth interest in the "Tilden Mine," located in the state of Colorado. Plaintiff obtained judgment, and defendant has appealed, and assigns for error certain exceptions taken in the progress of the trial to the exclusion of evidence, offered in their behalf, and to the action of the court in giving instructions for plaintiff, and certain alleged misconduct of the jury.

Speaking generally, it may be said that the principal and controlling question involved in the cause, as shown in the evidence on both sides, and in the instructions asked and given at the instance of the parties, is whether the defendants were, in fact, purchasers of said mine and of plaintiff's interest therein, under a conveyance thereof to them by plaintiff, or whether said conveyance was made by plaintiff and others to Gates and Waggoner, two of these defendants, with the knowledge and understanding, that said mine was, in fact, being sold by, and through, said defendants and one O. P. Chisholm, to certain New York parties, and with the understanding that defendants were to be liable for the purchase money, only in the event that they received the same, from said Chisholm or said parties in New York.

The starting point of the transaction seems to be January, 1879, at which time, plaintiff and other owners of said mine executed their bond to defendants, the main purport of which was to give defendants the option or right of election to purchase said mine, at a specified sum, on or before December first, following. Defendants contracted further to expend the sum of five thousand dollars in developing said mine, and were to have this sum refunded to them on the sales of ore taken from the dumps of the mine, in the event that they should elect not to purchase the same.

A second bond was afterwards, but on the same day, also executed by plaintiff and his co-owners to defendants, which recited a sale of their interests, being four-fifths of said mine, to defendants, and whereby upon the payment or deposit in bank of the specified sum by defendants, on or before said December first, 1879, the said owners undertook to execute and deliver proper deeds for said mining property. Said instrument is, we apprehend, in legal effect, the ordinary title bond for a deed.

No effort was, it seems, ever made by either party to enforce said bonds or either of them. Their importance if any was, unless we have misconceived the case, mainly as evidence supposed to bear upon the main question whether defendants were in fact purchasers of said mine, and upon the right of defendants to retain certain sums afterwards collected by them and arising from the sale of the said mining property.

Plaintiff claims and he so testifies that after the expiration of the bond, which provided for a compensation of twenty-two thousand dollars to each of said owners, for his interest in said mine, said S. K. Knox, one of these defendants, offered him in Colorado nine thousand dollars for his one-fifth interest, stating at the time, that he had bought out the other owners at that figure, which proposition plaintiff says he accepted with the further agreement that his expenses to Independence and return would be borne by said Knox. Some four or five days afterwards, plaintiff and others, went to Independence, as plaintiff testifies, to make the necessary deeds and to collect the money. At this time, to-wit: December 11, 1879, whilst at Independence, plaintiff and others executed and acknowledged a deed of general warranty to Gates and Waggoner, two of these defendants, conveying said mine, which said deed was placed of record in Chaffee county, Colorado, where said mine was situated, in January, 1880. At the same time, plaintiff and other owners, of said mine executed a certain other and further agreement, as follows:

"This agreement, made and entered into this twelfth day of December, 1879, by and between J. S. Shank, J. A. Gwin and James W. Shumate, parties of the first part, and William H. Waggoner and Geo. P. Gates, parties of the second part, witnesseth:

"That said parties of the first part have this day executed and delivered deeds to said parties of the second part conveying all of their right, title and interest in and to the Samuel J. Tilden Mining Lode, situated in Chaffee county, Colorado. Upon delivery of said deed said parties have this day received cash payment from said second parties as follows, to-wit: Said John S. Shank the sum of one thousand dollars ($ 1,000.00); said John A. Gwin the sum of one thousand dollars ($ 1,000.00), and James W. Shumate, on his individual one-tenth (1/10) interest in said mine or lode, the sum of one thousand dollars ($ 1,000.00), the receipt of all which sums is hereby acknowledged. It is further agreed and understood as follows, to-wit: That the remaining purchase money for said lode is to be paid to said parties of the first part when a sale (now being negotiated) of said lode is made and completed to one O. P. Chisholm, and out of money arising from such sale. Further payments from such money, arising from said sale to said Chisholm will be due the parties of the first part as follows: To said John S. Shank the sum of eight thousand dollars ($ 8,000.00), to said John A. Gwin the sum of eight thousand dollars ($ 8,000.00), and to said James W. Shumate the sum of thirty-five hundred dollars ($ 3500.00) for his one-tenth (1/10) individual interest in said mine, and the further sum of forty-five hundred dollars ($ 4500.00) for the interest of his children in said mine, when a guardian's deed, duly executed according to law, is delivered to said parties of the second part. It is further expressly understood and agreed, that if no sale is made of said lode to said Chisholm, then the said parties of the second part are not to be held for the further payments above mentioned, or any part thereof.

"It is further agreed, that said sale to said Chisholm is to be completed, if at all, in sixty (60) days from this date.

"(Signed),

John S. Shank.

"(Signed),

James W. Shumate.

"(Signed),

John A. Gwin.

"We, Mary O'Neal and John S. Shank, have this day executed a deed for our one-fifth interest in the Samuel J. Tilden lode and receive in cash the sum of one thousand dollars. The further sum of eight thousand dollars is yet due us, to...