Joy v. Cale

• Citation: 102 S.W. 30,124 Mo. App. 569
• Parties: JOY v. CALE et al.
• Decision Date: 30 April 1907
• Court: Court of Appeal of Missouri (US)

102 S.W. 30

124 Mo. A. 569

JOY v. CALE et al.

St. Louis Court of Appeals. Missouri.

April 30, 1907.

Rehearing Denied May 14, 1907.

1. APPEAL—FAILURE TO GIVE INSTRUCTION— REQUEST.

Error in failing to give an instruction predicated on certain evidence is not available where an instruction was not requested on that point.

2. SALES—ACTION FOR PURCHASE PRICE—EVIDENCE—SUFFICIENCY.

In an action for the purchase price of a piano, evidence held insufficient to support a verdict for plaintiff.

3. APPEAL — REVIEW — VERDICT — RESULT OF PREJUDICE.

Under Rev. St. 1899, § 866 [Ann. St. 1906, p. 815], making it the duty of appellate courts to examine the record, where a verdict could not have been reached but for prejudice or passion on the part of the jury, the judgment thereon will not be sustained.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Mary Frances Joy against George W. Cale and others for the purchase price of a piano. From a judgment for plaintiff, Alfred L. Starck and others appeal. Reversed and remanded for new trial.

W. D. Isenberg, for appellants. Thos. Bond, W. K. Koerner, and T. H. Moore, for respondent.

BLAND, P. J.

In 1903 plaintiff had in her house a square piano, which she wished to sell. Mrs. Sampson was nursing Miss Hill, plaintiff's sister, who lived with plaintiff, and plaintiff told Mrs. Sampson that she wished to sell the piano and would take $100 for it, and pay her a commission of $10 if she would find a purchaser, and at the same time represented to Mrs. Sampson that the piano, "though old, was perfectly sound and whole; that she had had it tuned inside of a year, and it was a very sweet-toned instrument." Defendants were appointed a committee by the Cote Brilliant Sunday school (unincorporated) to purchase a piano for the use of the school. Mrs. Sampson was a member of the Sunday school and went to the committeemen, and told them plaintiff had a piano for sale at $100; that she was to have $10 as commission, if she found a purchaser, and would donate her commission if the committee would purchase the piano, and repeated to them what plaintiff had said to her about its condition, adding that plaintiff was a good, reliable woman. After interviewing the committee, Mrs. Sampson saw the plaintiff, and said to her that she had agreed with the defendants to donate her commission of $10 if they would buy the piano, and asked plaintiff if it would be satisfactory to her if defendants paid her $90 for the piano. Plaintiff replied that she did not care what Mrs. Sampson did with the $10, and would be satisfied to receive $90 for the piano. Afterwards two of the defendants called at plaintiff's house to look at the piano. The plaintiff was not at home, but the piano was shown to them by Miss Hill, plaintiff's sister, who testified that she made no representations as to the condition of the piano; that it was thoroughly examined by the two committeemen, and after the examination they said they would recommend it to the committee; that she then wrote her sister, who advised her to close the trade. Subsequent to the inspection of the piano by the two committeemen the church organist and Mrs. Sampson called, and the latter told Miss Hill that the committee had decided to take the piano, and assured Miss Hill the money was on hand to pay for it, and that it would be paid for not later than the middle of the week. Miss Hill then telephoned Mr. Lanning, clerk of the church, to know when she could get the money for the piano. Lanning testified he told Miss Hill over the telephone that he would give her a check just as soon as the piano was delivered in good condition; that he was going out to the church to see that it was delivered all right. In the afternoon of the same day Miss Hill had the piano taken to the church. Lanning was at the church and inspected the piano, and found the metal plate to which the strings were fastened broken, and on the next morning telephoned Miss Hill that they could not take the piano because it was broken. Miss Hill replied that she did not know it was broken. The evidence shows that the break in the metal plate was an old one, and on account of it the piano could not be tuned to concert pitch, and to repair it would cost more than the instrument was worth. The evidence further shows that the break could not be seen without unscrewing and taking off the top of the piano, and that this was not done by the two committeemen, who went to plaintiff's house to look at the piano, and the break was not discovered by them. Neither of the committeemen were piano experts, and they testified that they relied upon the representations of Mrs. Sampson in regard to the condition of the piano, and did nothing more than look at it and one of them ran his fingers over the keys. Defendants offered to return the piano to plaintiff, but she refused to receive it. The suit is to recover the purchase price of the piano. The verdict was for plaintiff and defendants appealed.

The court instructed the jury as follows for plaintiff:

"(1) The court instructs the jury that if you find from the evidence that some time during the months of September and October, 1903, defendants called upon plaintiff for the purpose of negotiating the sale of a second-hand piano belonging to plaintiff, and that defendants agreed to purchase the same and to pay plaintiff the sum of $100 therefor, and that thereafter plaintiff delivered said piano and defendants received and accepted the same, but that defendants...