Jacobs v. Danciger

• Decision Date: 07 July 1939
• Docket Number: 36375
• Citation: 130 S.W.2d 588,344 Mo. 1042
• Parties: Floyd E. Jacobs, Administrator of the Estate of A. Hattrem et al., v. A. Danciger et al., Appellants
• Court: Missouri Supreme Court

130 S.W.2d 588

344 Mo. 1042

Floyd E. Jacobs, Administrator of the Estate of A. Hattrem et al., v. A. Danciger et al., Appellants

No. 36375

Supreme Court of Missouri

July 7, 1939

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge;

Affirmed.

Ringolsky Boatright & Jacobs for appellants.

(1) Plaintiff's Instruction 1 constitutes reversible error because it, like plaintiffs' Instruction 5, directed the jury to disregard the defense of illegality unless plaintiffs were particeps criminis to an unlawful act by defendants. (2) Admission of evidence of attempted compromise and settlement over objections was erroneous and prejudicial. (a) Before suit defendants made an unsuccessful attempt to compromise and settle possible liability on the contract. (b) Evidence of this attempt was clearly privileged and its admission erroneous. Starnes v. St. Joseph Ry., L.H. & P Co., 22 S.W.2d 73, affirmed 331 Mo. 44, 52 S.W.2d 852; Hester v. Ford, 221 Ala. 592, 130 So. 203. (c) That the evidence was prejudicial is clear in view of the fact that the jury returned a verdict for the exact amount demanded by plaintiffs in compromise and settlement. (3) It was error to refuse to declare a mistrial and to refuse new trial because of the misconduct of a juror and the party who approached him. (a) It is essential to the proper administration of justice that trials should not only actually be free from improper influences, but it is also essential, in order to maintain the confidence and respect of the people in the law and enforcement of same by the courts that all appearances of improper influence in trials be condemned. (b) The approach made twice to a juror with reference to the case on trial was calculated to affect the judgment and action of the juror and therefore required the court to declare a mistrial or grant a new trial. Bradbury v. Cony, 62 Me. 223; McDaniels, Executor, v. McDaniels, 40 Vt. 374; Craig v. Pierson Lbr. Co., 169 Ala. 548, 53 So. 803; New York Life Ins. Co. v. Turner, 97 So. 688; Schankweiler v. Pennsylvania Lighting Co., 118 A. 562; Carpenter v. Carpenter, 135 A. 325; York v. Wyman, 98 A. 1024; Callahan v. C., M. & St. P. Ry. Co., 158 F. 995; Lynch v. Kleindolph, 204 Iowa 762, 216 N.W. 2, 55 A. L. R. 745; Benjamin v. Met. St. Ry. Co., 245 Mo. 619, 151 S.W. 91.

Johnson, Garnett & Quinn for respondents.

(1) Plaintiffs' Instruction 5, by which the jury were instructed as to the legal effect of defendants' evidence of plaintiffs' knowledge of the alleged unlawful purpose of the contract in suit was entirely proper, and defendants' criticisms of that instruction are wholly without merit. Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650; 1 A. L. R. 725, 729; Hamilton v. Marks, 63 Mo. 167. (a) The claim, made for the first time on this appeal, that the instruction in question requires a finding that plaintiffs were particeps criminis to a violation of law by defendants, entirely ignores the fact that the instruction in question submits the element of participation and also the element of the seller's assent disjunctively. The instruction is so drawn that the jury, even if it should reject the theory of participation, could still render a verdict for defendants on the issue of illegality by a mere finding that plaintiffs, by assenting to the alleged unlawful use, thereby intended to make the sale in violation of the National Prohibition Act. Jacobs v. Danciger, 328 Mo. 458, 41 S.W.2d 389; Id., 339 Mo. 91, 95 S.W.2d 1193. (b) The instruction in question is not a comment upon a detached portion of the evidence, or the weight thereof. To the contrary, it is only an instruction as to the legal effect of the evidence of knowledge. The evidence is of such character that an instruction as to its legal effect was absolutely required in order to prevent the jury from entertaining an erroneous view as to its legal effect. Tyler v. Hall, 106 Mo. 323; Ward v. Fessler, 252 S.W. 671; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 651; Gray v. Lead Co., 331 Mo. 481, 53 S.W.2d 883; Hicks v. Veiths, 46 S.W.2d 604; Offutt v. Battagala, 44 S.W.2d 202; Sharp v. City, 319 Mo. 1028, 5 S.W.2d 6; Acker v. Koopman, 50 S.W.2d 100; Schrowang v. Van Hoffman Press, 75 S.W.2d 653. (2) The exchange of telegrams which defendants erroneously contend constituted compromise negotiations were nothing more than evidence of defendants' desire to cancel a valid contract and pay the damages resulting therefrom. They were properly admitted in evidence because the clear intention of both parties was merely to ascertain the amount of the damages, rather than an intention to make qualified or hypothetical admission for the purpose of compromise of an existing dispute. 3 Jones Commentaries on Evidence (2 Ed.), p. 1939; Ferguson & Wheeler v. Davidson, 147 Mo. 667; Moore v. Gaus & Sons Mfg. Co., 113 Mo. 111; January v. Harrison, 199 S.W. 935; Hunter v. Helsley, 98 Mo.App. 620; Lehmann v. Hartford Fire Ins. Co., 183 Mo.App. 696, 167 S.W. 1047; Brown v. Republic Cas. & Sur. Co., 31 S.W.2d 111; Farber v. Boston Ins. Co., 215 Mo.App. 564, 256 S.W. 1079; Mason v. Agricultural Ins. Co., 150 Mo.App. 17, 129 S.W. 472; Davidson v. Central Ins. Co., 119 A. 707. (3) There is no record support for defendants' claim of improper influence or misconduct of juror Lemon, and the trial court exercised proper discretion in refusing to grant a mistrial. Feary v. Met. St. Ry. Co., 162 Mo. 107; Hamburger v. Rinkel, 164 Mo. 407; Boyle v. Bunting Hardware Co., 238 S.W. 158; Merriwether v. Knapp & Co., 120 Mo.App. 393; Stratton v. Nafziger Baking Co., 237 S.W. 538; McGraw v. O'Neal, 123 Mo.App. 691, 101 S.W. 137.

Cooley, C. Westhues, C., concurs; Bohling, C., concurs in paragraph II as to result.

OPINION

COOLEY

Action by vendors against vendees for damages for breach of contract. Verdict and judgment for plaintiffs for $ 9624, from which defendants appealed.

On April 23, 1920, A. Danciger, representing defendants, partners, of Kansas City, Missouri, entered into a written contract with A. Hattrem, representing plaintiffs, partners, of Salem, Oregon, whereby it was agreed that plaintiffs would sell and defendants would buy 150 bales of hops, to be delivered f. o. b. cars at Kansas City, Missouri, 50 bales in October, 50 bales in November and 50 bales in December, 1920. Thereafter the market price of hops declined. On September 23rd and 24th, 1920, defendants notified plaintiffs they would not accept the hops if shipped and would not comply with the contract. The hops, therefore, were not shipped. Plaintiffs sued to recover the difference between the contract price and the market value of the hops at the time of breach of the contract. Defendants, by their answer, alleged that the contract was void because in violation of law, in that plaintiffs knew defendants intended to use and sell the hops in certain packages called "home brew packages," containing materials and appliances for making home brew beer having more than one-half of one per cent of alcohol, contrary to Section 18, Title 2, National Prohibition Act, U.S.C., Title 27, Section 30 (27 U.S.C.A., sec. 30), and with such knowledge agreed and consented to such intended illegal use of the hops by defendants and aided and abetted them in their purpose to violate the law.

The case has been in this court twice before. At the first trial plaintiffs recovered judgment, which on appeal was revered by this court (Div. One), in Jacobs et al. v. Danciger et al., 328 Mo. 458, 41 S.W.2d 389. Another trial followed, in which the verdict was for defendants. On plaintiffs' appeal we again reversed the judgment and remanded the cause. [Jacobs et al. v. Danciger et al. (Div. Two), 339 Mo. 91, 95 S.W.2d 1193.] Both reversals were because of errors in instructions. Such further statement of facts as may be deemed necessary will be made in the course of this opinion. In this connection, also, we refer the reader to our opinions on the former appeals for more detailed statement of the facts.

I. Defendants contend that Instruction No. 5, given for plaintiffs was prejudicially erroneous. It reads:

"The jury are instructed that mere knowledge alone, without assent thereto or participation therein on the part of the sellers at the time of entering into a contract for the sale of a commodity that their purchasers intended to use such commodity as an ingredient in a mixture, the sale of which would be a violation of law, would not in itself invalidate such contract; there must be some act or agreement or consent of the sellers in furtherance of such unlawful purpose.

"If you find and believe from the evidence that, at the time of entering into the contract in suit, the plaintiffs knew that the defendants intended to use said hops in the manufacture and sale of packages in violation of law, but notwithstanding such knowledge, if any, did nothing or agreed to do nothing which would be in furtherance of such purpose, nor consent to such violation, you will disregard the defense that the contract in evidence was a contract in violation of the law."

The complaints of said instructions are, first, that it directed the jury to disregard the defense of illegality of the contract unless plaintiffs were particeps criminis in a violation of law by defendants, and second, that it improperly singled out and commented upon certain evidence in its reference to plaintiffs' knowledge of defendants' intended illegal use of the hops.

Said instruction was given in both the previous trials to which we have referred. It was challenged by defendants on the first appeal and apparently met the approval of this court. Defendants now say, however, that they did not then raise the specific objections above indicated and that therefore the court did not pass upon those phases of the...