Huber v. Jones

• Decision Date: 17 April 1935
• Docket Number: 31209
• Parties: HUBER v. JONES et al
• Court: Missouri Supreme Court

85 S.W.2d 418

HUBER v. JONES et al

No. 31209

Supreme Court of Missouri, First Division

April 17, 1935

Motion for Rehearing Overruled July 9, 1935.

Joseph T. Davis, of St. Louis, for appellant.

Ryan & Hopewell, of St. Louis, and Richard F. Ralph, of Clayton, for respondents.

COLES J., not sitting.

OPINION

PER CURIAM.

This action was brought by appellant, plaintiff below, to rescind a trade or exchange of real estate theretofore made between plaintiff and certain of the defendants as alleged in the petition. The cause was tried in the circuit court of St Louis county. The decree below was for defendants, and plaintiff appealed.

What appellant labels in her brief as assignment of errors and points and authorities are not sufficient to warrant a consideration of this case on its merits. Our rule 15 provides that 'the brief for appellant shall distinctly allege the errors committed by the trial court, and shall contain in addition thereto * * * a statement in numerical order, of the points relied on.' The rule further provides that 'no * * * brief which violates this rule will be considered by the court.'

We have been liberal in our construction of rule 15. While the rule calls for a statement of the points relied on in addition to the assignments of error, we have not insisted upon a literal compliance with this provision. Where a brief clearly states the points relied on in the points and authorities, we have held that to be a substantial compliance with the rule, although no separate assignment of errors is made, but we have never relaxed the requirement that the points relied on must be clearly and definitely stated. In the recent case of Aulgur v. Strodtman, 329 Mo. 738 742, 46 S.W.2d 172, 173, our judgment of what rule 15 requires is stated as follows:

'In an assignment of errors the appellant should distinctly state the errors relied upon for reversal. Though separately alleged, they frequently appear as broadly expressed in a motion for a new trial. It is doubtless because of such generality of presentation that subdivision 2 of above rule 15 further requires the appellant to particularize by furnishing 'a statement, in numerical order, of the points relied on, with citation of authorities thereunder' We have time and again emphasized that this requirement for particularization cannot be met by mere abstract statements of law or of facts not therein shown to have direct bearing upon or connection with the errors alleged. Cox v. Orr, 322 Mo. 207, 209, 14 S.W.2d 440; Stroker v. City of St. Joseph, 316 Mo. 1090, 292 S.W. 1031; State ex rel. Davidson v. Caldwell, 310 Mo. 397, 405, 276 S.W. 631; Hunt v. Hunt, 307 Mo. 375, 391, 270 S.W. 365; Automatic Sprinkler Co. v. Stephens, 306 Mo. 518, 525, 267 S.W. 888; Vahldick v. Vahldick, 264 Mo. 529, 533, 175 S.W. 199; Johnston v. Johnston (Mo. Sup.) 16 S.W.2d 91; Hanchett Bond Co. v. Palm (Mo. Sup.) 220 S.W. 673; Duffy v. Allen (Mo. Sup.) 220 S.W. 857; Haves v. McLaughlin (Mo. Sup.) 217 S.W. 262, 264; Frick v. Millers' Nat. Ins. Co., 279 Mo. 156, 213 S.W. 854.

'True, our rules have been liberally construed to permit errors distinctly alleged under the head of points and authorities, or appearing even elsewhere in appellant's brief, to supplement a defective assignment of errors, or be treated as such where no formal assignment of errors appears. Collier v. Lead Co., 208 Mo. 246, 259, 106 S.W. 971; Mugan v. Wheeler, 241 Mo. 376, 145 S.W. 462; Perry v. Strawbridge, 209 Mo. 621, 108 S.W. 641, 16 L. R. A. (N. S.) 244, 123 Am. St. Rep. 510, 14 Ann. Cas. 92. But, for obviously good reasons, we have never relaxed our requirement for particularization in statement of points relied on.'

The assignment of errors and points and authorities contained in appellant's brief read as follows:

'Assignment of errors and points and authorities:

'I. It is a well settled equitable rule that anyone acting in a fiduciary relation shall not be permitted to make use of that relation to benefit his own personal interest, except with the full knowledge and consent of the other person.

'II. The relation of principal and agent is one of trust and confidence, and the dealings between them must be in complete good faith and there can be no concealment of any material fact from the principal nor misrepresentation of any fact to the principal and no advantage gained by the agent which would be inequitable for him to retain. The first duty of an agent is loyalty to his trust and principal.

'Jones acting as the agent for the plaintiff had no right to purchase the property for himself from Dr. O'Malley and then transfer it to the plaintiff for her equities without her express knowledge and consent as to all of the details.

'III. The burden is upon Jones, as agent, to show that he and his brother fully informed plaintiff, as their principal, prior to the transaction, of all the facts within the knowledge of the agent.

'IV. The defendants having failed to exercise good faith and loyalty as agent to their principal, plaintiff herein, and being guilty of misconduct which operates to the plaintiff's disadvantage or injury, the defendants are responsible to plaintiff for any loss resulting therefrom, or plaintiff may rescind and repudiate the acts of the defendants and offer to restore the property and recover back any money or property paid or conveyed to the defendants.

'V. The plaintiff herein acted promptly in rescinding said trade agreement with the defendants after she discovered the fraud committed upon her by her agent and is therefore entitled to recovery.

'VI. The Court, in the trial of this case on its merits, was guilty of bias and prejudice against the plaintiff and erroneously decided and decreed that the plaintiff should not recover, dismissing plaintiff's petition and dissolving the temporary...