Hill Bros. v. Bank of Seneca

• Decision Date: 17 March 1903
• Citation: 73 S.W. 307,100 Mo. App. 230
• Court: Missouri Court of Appeals
• Parties: HILL BROS. v. BANK OF SENECA.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 307

100 Mo. App. 230

HILL BROS. v. BANK OF SENECA.^*

Court of Appeals at St. Louis, Missouri.

March 17, 1903.

STATUTE OF FRAUDS—PROMISE TO ANSWER FOR DEBT OF ANOTHER—DECLARATIONS OF AGENTS — TERMINATION OF AGENCY — EVIDENCE—ACCOUNTS KEPT BY AGENTS—APPEAL—INSTRUCTIONS —HARMLESS ERROR — EXCLUSION OF EVIDENCE — DISTURBANCE OF VERDICT.

1. Where there is evidence to support a verdict, it will not be disturbed on appeal.

2. An agreement by defendant to pay plaintiffs for threshing wheat mortgaged to them was not brought within the statute of frauds as a special promise to answer for the debt of another because it included an agreement to pay for wheat previously threshed by plaintiffs under agreement with the mortgagor.

3. It was not error to refuse an instruction repeating instructions already given.

4. In an action to recover a balance due for threshing wheat, an instruction that the jury were to find for the plaintiffs if defendant contracted to pay for the threshing "on taking possession of the wheat," was not prejudicial to defendant in assuming that the contract was made when possession was taken, when in fact it was made on the next day.

5. Where a mortgagee contracted to pay plaintiffs for threshing the entire crop of wheat mortgaged, plaintiffs were entitled to recover for threshing the whole crop, and the fact that the agreement with the mortgagor by which the mortgagee took possession of the wheat authorized it to incur expense only so far as was necessary to market enough wheat to satisfy the mortgage, of which agreement plaintiffs had knowledge, was immaterial.

6. Where plaintiffs were informed by defendant that defendant's agents would be in full charge of the details connected with threshing wheat mortgaged to defendant, which plaintiffs were engaged to do, and an indorsement to that effect appeared on the back of one of the mortgages, defendant was bound by the admissions and promises made by such agents, irrespective of the actual authority vested in them.

7. In an action to recover the balance due under a contract engaging plaintiffs to thresh wheat mortgaged to defendant, where evidence had been introduced by defendant showing that plaintiffs had kept their account in the name of the mortgagor, it was competent for plaintiffs to show that they had done so at the request of defendant's agents.

8. In an action to recover the balance due for threshing wheat mortgaged to defendant, declarations of defendant's agents, while still acting within the scope of their agency, that defendant was going to pay for the threshing, were competent.

9. In an action to recover a balance due for threshing wheat mortgaged to defendant, an instruction limiting defendant's credits to $1,062, when his mortgagor had paid plaintiffs $250 additional to "apply on the threshing amount," was not error where the plaintiff's uncontradicted evidence was that the $250 was applied to the payment of an account for threshing oats.

10. In an action to recover a balance due for threshing wheat mortgaged to defendant, it was shown that plaintiffs had drawn a draft for such balance on another party, who had an interest in the wheat. Defendant relied on this fact to excuse it from liability. Plaintiffs testified that it was done at the instance of defendant's agents, and to corroborate that fact introduced a statement of account rendered by the agents, after the termination of the agency, in which defendant was credited with the draft when drawn, and charged with it when returned dishonored. Held, that the statement was properly admitted in evidence.

11. In an action to recover a balance due for threshing wheat mortgaged to defendant, a separate mortgage, executed by the mortgagor to defendant's agents, was properly excluded.

12. Where facts relating to a mortgage were made to appear by oral testimony, the exclusion of the mortgage was, if error, harmless.

13. Where the jury returned a verdict for plaintiffs, without an assessment of damages, the court properly refused to receive it, and directed the jury that they must assess the damages without further instructions.

14. Plaintiffs were engaged by defendant to thresh a crop of wheat mortgaged to it, defendant's agent having charge of the work. After threshing a sufficient quantity to satisfy defendant's claims, a contract was entered into between plaintiffs and a subsequent mortgagee of the wheat, whereby the latter was to pay for all wheat threshed thereafter, plaintiffs retaining sufficient grain to secure their claim. Pursuant to this agreement, plaintiffs held two car loads of wheat, which they finally let go, on a promise by defendant's agents, whose agency had in the meantime terminated, which fact plaintiffs knew, that defendant would pay for the same. Held, that plaintiffs could not, in reliance on the promises of the agents, recover for the wheat threshed subsequent to the new agreement.

Appeal from Circuit Court, Newton County; H. C. Pepper, Judge.

Action by Hill Bros. against the Bank of Seneca. From a judgment for plaintiffs, defendant appeals. Affirmed, with condition.

Geo. Hubbert, for appellant. J. T. Sturgin, for respondents.

Statement of Facts and Opinion.

GOODE, J.

Many of the facts of this case are stated in the report of the decision on a former appeal (87 Mo. App. 590); but as the case came to this court then from a judgment rendered by the court below in favor of the bank on a demurrer to the plaintiffs' evidence, the facts to support the defense on the merits were not before us, and were not embraced in the statement of facts then made. The question for our determination on that appeal was whether the plaintiffs' evidence made a case for submission to the jury, and we held that it did, reversing the judgment, and remanding the cause to be retried; which imposed on the defendant, of course, the necessity of introducing evidence to maintain its defenses pleaded in the answer.

To recapitulate to some extent the principal facts will assist a reader to understand the controversy. The action was brought to recover from the defendant bank an unpaid balance of the cost of threshing about 34,000 bushels of wheat. This wheat was raised by W. A. Richardson on 3,900 acres of land in the Indian Territory, near Catoosa. Richardson had given two mortgages on the growing crop to the Bank of Seneca—one dated February 12, 1898, to secure a promissory note for $1,500, maturing May 16th; the other dated April 19, 1898, to secure a promissory note for $3,000, due 90 days after date; that is to say, July 19th. J. M. Berry, cashier of the bank, went to Catoosa on July 2d to look after the bank's security on receipt of information that some of the wheat had been shipped by Richardson. Before that date Richardson had employed the plaintiffs, a firm composed of O. W., L. W., and F. W. Hill, doing a threshing business under the style of Hill Bros., to thresh the crop. They had begun the work on June 22d, and had threshed about 5,000 bushels, as the fuller evidence discloses, when Berry appeared on the scene. At that time Hill Bros. had their machines in the field. Threshing was in full progress. Richardson had shipped several car loads of the cleaned wheat to St. Louis, and had some on hand. He agreed to pay the plaintiffs seven cents a bushel for threshing. Berry found Richardson in the wheat field near the machine, and had an interview with him, the result of which was that Richardson surrendered possession of the wheat to Berry as the bank's representative. This was done by the following indorsements, the first of which was made on the back of the mortgage dated February 12th, and the second on the back of the one dated April 19th:

"Possession of the within described property is hereby delivered to the Bank of Seneca, Mo., they, through their representative T. M. Reynolds & Co., to attend to the within threshing of the wheat and selling same and paying all further bills and expenses, receiving full possession of all sales until the indebtedness to the Bank of Seneca, Mo., is paid in full.

"Delivery possession of the cattle is also made; agreement upon my part to cut them out from other cattle is also made when requested to do so by the bank or its agent, Mr. Reynolds & Company.

                  "W. A. Richardson
                  "Dated July 2, 1898, 4:45 p. m
                  "Witness: [Signed] O. W. Hill."
                

"Possession of the within described property is hereby given in full to the Bank of Seneca, Mo., through its cashier J. M. Berry, who through himself or representative is to attend to the further threshing of the wheat, loading and billing the same, and is to receive full proceeds of sale of wheat until all the indebtedness due said bank is paid in full and all the expenses of threshing, hauling, loading, freight, commission, labor and other things are paid."

When Berry took possession of the wheat, he first put the plaintiffs in charge as his agents, but the next day he again went to the field in company with T. M. Reynolds and Thomas Dougherty, a firm doing business at Catoosa under the style of T. M. Reynolds & Co., and on that date—July 3d—he took the wheat out of the hands of Hill Bros., and put it in charge of Reynolds & Co., as the bank's agents. At the same time Berry made the contract with the plaintiffs in regard to the threshing on which this action is founded.

The testimony for the plaintiffs is, in substance, that Berry said to O. W. Hill: "That wheat I put in your hands yesterday I will take out and put in Mr. Dougherty's hands. Go ahead with the threshing, and look to the Bank of Seneca for the pay, for we will pay you for the entire crop." Berry had previously notified O. W. Hill of the bank's mortgages, and that he was the cashier of the bank. Thereafter the plaintiffs continued the threshing, the wheat was shipped and sold by Reynolds & Co., and the proceeds applied to the payment of the indebtedness to the Bank of Seneca until July 15th, when that bank had realized...