Howard v. Hurst

• Citation: 147 S.W. 496,163 Mo.App. 641
• Parties: CHARLES M. HOWARD, Respondent, v. E. N. HURST, Administrator of the Estate of HENRY ZWEIGART, Appellant
• Decision Date: 13 May 1912
• Court: Court of Appeals of Kansas

147 S.W. 496

163 Mo.App. 641

CHARLES M. HOWARD, Respondent, v. E. N. HURST, Administrator of the Estate of HENRY ZWEIGART, Appellant

Court of Appeals of Missouri, Kansas City

May 13, 1912

Appeal from Vernon Circuit Court.--Hon. B. G. Thurman, Judge.

AFFIRMED.

Affirmed.

Scott & Bowker for appellant.

Where one party to a cause of action is dead, the agent of the other party is incompetent to testify. Grubbs v Ray, 141 S.W. 17; Carroll v. Railroad, 137 S.W 303. In an action for breach of covenant of warranty of seizin, the measure of damages is limited to the consideration paid. Allen v. Kennedy, 91 Mo. 324; Coleman v. Lucksinger, 224 Mo. 1; Lambert v Estes, 99 Mo. 604. Where the covenantor conveys a life estate by his deed its value deducted from the consideration paid is the measure of damages for the breach of covenant of warranty where the remainder title fails. Lockwood v. Sturdervant, 6 Conn. 375; Tanner v. Livingston, 12 Wend. 83; Hartford v. Miller, 41 Conn. 113; Huntsman v. Hendricks, 44 Minn. 423; Brannon v. Curtis, 69 L.R.A. 760.

John H. Crain and M. T. January for respondent.

A case will not be reversed for error in admitting an incompetent witness, if the same facts are established by other competent and uncontradicted witnesses. Gibbs v. Haughowout, 207 Mo. 384. The ruling of the appellate court on the first appeal is the law of the case on the second appeal, where the evidence is substantially the same. Palmer v. Reeves & Co., 142 S.W. 1080; Livingston v. Allen, 87 Mo.App. 179; Wolfe v. Ins. Co., 86 Mo.App. 590. A party cannot complain of error in an instruction where he asked and the court gave one for him on the same theory. Lathrop v. Railroad, 135 Mo.App. 16; Thompson v. Railroad, 86 Mo.App. 141. In an action on a covenant of warranty in a deed the measure of damages is what the covenantee has lost, but not in excess of the purchase price. Howard v. Hurst, Adm., 137 S.W. 1.

OPINION

BROADDUS, P. J.

This suit originated in the probate court of Vernon county, and is based on the claim for alleged breach of warranty against the administrator of the estate of Henry Zweigart, deceased.

In 1899 Henry Zweigart conveyed to plaintiff six hundred and sixty acres of land in Vernon county, Missouri, in exchange for four sections of land in Texas, and the payment of about $ 1364, in money. Afterwards, one Jason Campbell brought a suit against the plaintiff claiming the remainder in fee simple in 160 acres of the land subject to the life estate of his mother, Cynthia, and also afterwards one G. L. McCully and others brought suit against plaintiff claiming the remainder in fee simple, subject to the life estate of John F. McCully in the other quarter section of said land. Both resulted in favor of plaintiffs therein and the court adjudged that plaintiffs have title as claimed, subject to the respective life estates mentioned. Afterwards, plaintiff bought the interest of the said remaindermen in said land for the sum of $ 7000. This suit is to recover against the estate of deceased money paid out by plaintiff to perfect his title. The plaintiff's evidence tended to show that the price of the Texas land was ten dollars per acre and the Missouri land was forty-two dollars per acre, and that plaintiff paid deceased $ 1364, the difference between the two at their agreed valuations.

This case was here once before and is reported in 156 Mo.App. 205, to which reference is made for a further explanation of the case.

A witness by the name of Webb, who was acting as agent for plaintiff, was allowed to testify at the former trial without objection that he consummated the trade between the parties, and that the parties agreed upon the valuations placed upon their lands. On the trial anew objection was made to the competency of said Webb to prove the contract, the other party to the contract being dead. The objection was sustained, but he was allowed to testify that he was present when plaintiff and deceased consummated the exchange of lands and he heard what was said at that time, viz.: "Mr. Zweigart said that he was there ready to comply with his contract with Mr. Howard; and Mr. Howard, he paid him the $ 1364 and took his land at forty-two dollars an acre, and was to take Mr. Howard's land at ten dollars per acre." Defendant moved to strike out said evidence but the court refused to so do.

On account of the ruling of the court in rejecting the testimony of Webb as to the part he took in the transaction the plaintiff's case was not as strong as it was on the former trial.

Proper proof was made as to the value of the different remainders in fee in the land conveyed by deceased to the plaintiff. Defendant offered to prove the value of the life estates in the land, which offer the court refused.

The jury returned a verdict in favor of plaintiff for $ 7000 from which defendant appealed.

The appellant makes three assignments of error. First. The court erred in admitting evidence of the witness Webb as to what took place in Mr. January's office at the time the deal was closed. Second. The court erred in giving...