Hatch v. Bayless

• Decision Date: 04 March 1912
• Citation: 146 S.W. 839
• Parties: HATCH v. BAYLESS.
• Court: Missouri Court of Appeals

146 S.W. 839

HATCH v. BAYLESS.

Springfield Court of Appeals. Missouri.

March 4, 1912.

Motion to Transfer to Supreme Court Denied May 6, 1912.

1. EVIDENCE (§ 106)—CHARACTER OF PARTIES —RELEVANCY.

In civil actions, the character of either party, until assailed, cannot be inquired into, unless it is put in issue in cases like libel, slander,

and malicious prosecution, when its value must be considered in assessing the damages.

2. APPEAL AND ERROR (§ 898) — QUESTIONS REVIEWABLE—RULINGS ON EVIDENCE.

The appellate court, in an action at law, may not try the case de novo and reject incompetent evidence.

3. ALTERATION OF INSTRUMENTS (§ 27)— BURDEN OF PROOF.

A defendant, in an action on a contract, who alleges a material alteration of the contract by plaintiff after delivery, has the burden of proving the alteration.

4. COURTS (§ 91)—CONTROLLING DECISIONS.

The decisions of the Supreme Court are binding on the Court of Appeals.

5. APPEAL AND ERROR (§§ 1031, 1032)—PREJUDICIAL ERROR—PRESUMPTIONS.

Errors of the trial court are presumptively prejudicial; and the party asserting that they are harmless must show such fact affirmatively.

6. APPEAL AND ERROR (§ 1031)—RULINGS ON EVIDENCE—REVIEW.

Where the trial court, sitting without a jury in an action at law, permits incompetent evidence, over objection, the error is presumptively prejudicial.

7. APPEAL AND ERROR (§ 231)—EVIDENCE—OBJECTIONS — EXCEPTIONS — SUFFICIENCY.

Where plaintiff objected to a question asked a witness testifying by deposition for defendant and to his statement as to the general reputation of defendant for honesty and truthfulness, because no attack had been made on the reputation of defendant, and objected to the testimony of the witness on the subject of plaintiff's general reputation for truth because that was not in issue, and asked that that part of the deposition be stricken out, which "objection" was overruled by the court, to which plaintiff excepted, the objections were sufficiently specific to call for review on appeal, though the bill of exceptions used the word "objection," instead of "objections."

8. APPEAL AND ERROR (§ 273)—EVIDENCE—OBJECTIONS — EXCEPTIONS — SUFFICIENCY.

Where the court considered that the testimony of a witness as to the good reputation of defendant and the bad reputation of plaintiff was competent, and by one ruling overruled objections on specific grounds, one exception to the ruling was sufficient, within Rev. St. 1909, §§ 2028, 2029, providing that there must be a separate exception to each ruling.

9. APPEAL AND ERROR (§ 230)—OBJECTIONS TO EVIDENCE—TIME TO MAKE.

The rule that an objection to a question is too late, when not made until the witness has answered, does not apply with the same effect where both the questions and answers are in the form of a deposition.

10. APPEAL AND ERROR (§ 1050)—HARMLESS ERROR — ERRONEOUS ADMISSION OF EVIDENCE.

Where, in an action on a contract, the issue was whether the contract had been materially altered by plaintiff after delivery, as alleged by defendant, and the sole evidence on the issue was the conflicting testimony of the parties, the error in permitting a witness to testify to the good reputation of defendant and the bad reputation of plaintiff was reversible.

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

Action by Ellen Hatch against C. W. Bayless. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

F. M. Mansfield and W. J. Boyd, both of Hartville, and Rechow & Pufahl, of Bolivar, for appellant. E. H. Farnsworth, of Mountain Grove, and Lamar, Lamar & Lamar, of Houston, for respondent.

McDAVID, Special Judge.

In March, 1902, the plaintiff and defendant entered into two separate contracts, whereby the defendant promised and agreed to pay the plaintiff the sum of $500, upon conditions and terms in such contracts specified; each contract calling for the payment of $250, in fruit trees— said sum of $500 being in payment for certain personal property sold by the plaintiff to the defendant at the time.

The suit was brought in the circuit court of Wright county, and was returnable to the September term, 1908. The petition is in two counts in the usual form, pleading the execution of the contracts, amounts due thereon, the conditions of same, a failure of the defendant to comply with their terms, and a prayer for judgment. The defendant in due course filed an amended answer, duly verified, admitting that on the day alleged he executed two contracts, but averring that said contracts, after the execution and delivery thereof, had been changed, and, with a fraudulent purpose, mutilated; and that by reason thereof the defendant was no longer liable thereon. The answer further alleged that the change and mutilation complained of is that the original contracts, as executed, had written thereon the time when the said apple trees were to be delivered, to wit: Under the first contract (Exhibit A), they were to be delivered in the spring of 1903, and in the second contract (Exhibit B), they were to be delivered in the spring of 1904; and the defendant alleged that the parts of the contracts whereon was written the time specified for the delivery of these trees had been torn off, thereby rendering the contracts void. Further answering, the defendant alleged that he at various times, prior to the spring of 1903, wrote to the plaintiff, at the address left by her with him for that purpose, asking for shipping directions, and that she made no reply thereto; and that in the spring of 1903, he prepared, packed, and boxed in good condition, ready for shipment, $250 worth of apple trees and delivered same at the depot in West Plains, Mo., ready for shipment. Failing to receive any shipping directions, and failing to find any at West Plains, the defendant alleged that he took the trees back home, and that he "healed" them in the garden, and that "healing," they died. As to the second contract, the answer does not aver any delivery of the trees, therein called for, at West Plains, but alleges that he reserved $250 worth of trees ready for delivery, as provided for in said contract, at any time during the spring of 1904, awaiting shipping directions from plaintiff, and that defendant requested from plaintiff such shipping directions, and that plaintiff failed and refused to answer any of his communications; that by reason of such delay and failure of plaintiff, though the defendant carefully cared for said trees and held them ready for delivery, they died during the summer and fall of 1904, all to the damage of the defendant in the sum of $250, the amount called for in said contract, marked "Exhibit B."

Plaintiff by reply denies any mutilation of the contracts, denies that she tore off or detached any part of said contracts, and denies that the defendant delivered any trees at West Plains, Mo., as provided for in the contract, and then generally denies all new matter pleaded in defendant's answer.

The testimony of the plaintiff and defendant tends to support their respective theories of the case and the allegations of their respective pleadings. As to the integrity of the contracts sued on, and whether or not there had been any change or mutilation thereof, there was no testimony, save and except that given by the parties to the action. One witness, to wit, L. M. Fenner, who was postmaster at that time at Buckhart, Mo., gave testimony tending to corroborate the testimony of the defendant respecting the writing by him of letters to plaintiff, requesting directions for shipment of trees, and likewise corroborating him in his statement that in the spring of 1903 he had hauled apple trees, boxed and ready for shipment, to West Plains, Mo. Over the objections of the plaintiff, this witness, whose testimony was introduced in this case in the form of a deposition, was permitted to testify concerning the general reputation of both plaintiff and defendant for truthfulness, honesty, and uprightness in the vicinity of Buckhart, where they resided, and was permitted by the court, over such objections, to state that the reputation of the defendant was good, while that of plaintiff was bad.

The trial was to the court, a jury being waived, and, judgment being rendered for the defendant, the plaintiff appealed. This is a sufficient statement of the facts.

Numerous errors alleged to have been committed by the trial court are presented to us for determination in the brief of counsel for appellant. We have considered all of the assignments of errors, and have examined the authorities cited in support thereof, as well as the briefs, original and supplemental, of counsel for respondent in reply thereto. However, in the view which we take of the case, and the conclusion we have reached, it will be necessary to discuss only one point, to wit, the alleged error of the trial court in permitting evidence to be introduced as to the character of the plaintiff and of the defendant.

The authorities in this state on this subject are uniform and unambiguous. In civil cases, the character of neither party, until assailed, can be inquired into, unless it is put in issue in that class of cases, such as libel, slander, and malicious prosecution, when its value is to be considered in assessing the amount of damages. Vawter v. Hultz, 112 Mo. 633, 20 S. W. 689; Alkire Grocer Co. v. Tagart, 78 Mo. App. 166; Dudley v. McCluer, 65 Mo. 241, 27 Am. Rep. 273. So it unquestionably appears that in this case the trial court committed error in admitting evidence as to the defendant's general reputation. But the respondent strenuously insists that this was not material error prejudicial to the rights of the appellant, and that the judgment ought to be affirmed, notwithstanding the error.

It is to be remembered that this was an action at law, and not a suit in equity; and that the appellate court in such a case is not authorized to try the action de novo, and in such trial reject...