Long v. Rucker

• Decision Date: 02 March 1914
• Parties: JACKSON A. LONG et al., Respondents, v. FANNIE H. RUCKER et al., Appellants
• Court: Kansas Court of Appeals

164 S.W. 170

177 Mo.App. 402

JACKSON A. LONG et al., Respondents, v. FANNIE H. RUCKER et al., Appellants

Court of Appeals of Missouri, Kansas City

March 2, 1914

AFFIRMED (CONDITIONALLY).

Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.

Judgment affirmed.

W. M Williams, C. D. Corum and E. W. Hinton for appellants.

(1) Plaintiffs cannot recover damages due to the unpleaded act of renting the building. They plead that the damage was due to the alleged slanderous conversation which took place after the building had been rented, and must stand or fall on this allegation. Rhodes v. Bugg, 148 Mo. 714. (2) It is not essential to the validity of the defense of advice of counsel that immaterial facts should have been communicated. 19 Am. Eng. Cyc. of Law (2 Ed.), p. 688. (3) When plaintiff introduces the testimony of a witness, even though that witness be the defendant himself, if his testimony is uncontradicted and not absolutely opposed to the physical facts in the case, it must be accepted as true and plaintiff must abide the results of his testimony. Claflin & Co. v Dodson, 111 Mo. 201; Chandler v. Fleeman, 50 Mo. 240. (4) Where a petition limits the amount of plaintiff's damage for an itemized injury, the instruction should likewise limit the recovery to said amount. Finley v. Railroad, 238 Mo. 6; Rodke v. Basket Co., 229 Mo. 1; Mort v. Kansas City, 194 Mo. 513; Wright v. Jacobs, 61 Mo. 19.

Harris & Finley and Walker & Walker for respondents.

(1) There was sufficient evidence to support the finding of the jury as to the reasonable worth of plaintiffs' stock of goods, fixtures, business and lease. Aside from all the circumstances in evidence, the price alone for which said property was actually sold after the slander was sufficient evidence of value. Garlington v. Railroad, 34 Tex. Civ. App. 274, 78 S.W. 368; Watson v. Railroad, 57 Wis. 332, 15 N.W. 468; Rickey v. Tenbroeck, 63 Mo. 567; Johnson & Co. v. Ice & Ref. Co., 143 Mo.App. 452; Loe v. Railroad, 57 Mo.App. 356.

OPINION

TRIMBLE, J.

The case herein considered was before the court, at the March, 1912, term, on an appeal by plaintiff from an order of the trial court refusing to set aside an involuntary nonsuit brought about by a ruling that plaintiffs' evidence did not entitle them to go to the jury. That ruling was disapproved and the cause was reversed and remanded in order that the issues of fact therein might be submitted to a jury. [Long v. Rucker, 166 Mo.App. 572, 149 S.W. 1051.] In accordance with that decision a trial has been had, the issues have been submitted, and the jury has returned a verdict for plaintiffs in the sum of $ 2738.24 actual, and $ 100 punitive, damages. The court rendered judgment thereon and defendants appealed.

The case is for damages for slander of title to real estate. A detailed statement of the facts need not be repeated here since they are set forth in the former opinion. However, in order that the questions involved may be easily kept in mind, it may be well to state that the defendant, Fannie H. Rucker, was the owner of a store building in Columbia and that her codefendant William H. Rucker, was her husband and her agent acting for her in the renting of said property and in the general business of looking after it. Plaintiffs held a written lease on said building, which had one more year to run, at a rental of sixty-five dollars per month. They became financially embarrassed and owed a number of debts, among them one of about $ 1500 to Mr. R. B. Price, Jr., a banker. Their assets, however, exceeded their liabilities. About March 19, 1910, they found a purchaser of their business, a Mr. Kistler, who agreed with them orally that he would buy their stock and unexpired leasehold for $ 4200. To do this he made an arrangement with Mr. Price whereby the latter was to lend him a portion of the money, otherwise he would be unable to buy the stock. Mr. Price agreed to lend him the money and the understanding and agreement was that the purchaser would take the stock and continue the business at the old stand. The agreement was fully reached on Saturday, March 19, 1910, at noon, and Kistler was ready to take possession, but owing to their inability to obtain the release of a certain claim until the following Monday it was agreed that the trade would be finally closed on Monday as the holder of the claim would return and make a release on that day.

Saturday afternoon about three or four o'clock, after the agreement had been reached, the defendant, William H. Rucker, went to one of the plaintiffs, Clarence A. Long, and asked him about their business and this plaintiff told him they had fixed up a sale and was going to sell the business to Mr. Kistler. Rucker replied "you tell Kistler to see me before he buys the place." Long told him he still had a lease for a year on the building. To which Rucker replied, "Well, you tell Kistler to see me," but gave no reason why Kistler should see him.

Some time that same day (Saturday) Price saw William H. Rucker and discussed the matter with him and asked him not to do anything that would be detrimental to the interests of plaintiffs' creditors and Rucker promised not to do so, and about seven o'clock that evening Price learning that other persons were trying, if possible, to get hold of the location, telephoned Rucker asking him not to take any action that would prejudice the interests of creditors, and thereupon Rucker assured him positively that he would not, and made an appointment to come to the bank Monday and see Price about it before doing anything. He did not keep the appointment, although he admits he was in a store just across the street from Price's bank. About three o'clock on Monday afternoon Rucker leased the building to another firm. Price heard through other sources that Rucker, in violation of his agreement, was negotiating with other parties, but did not believe it. Tuesday morning Rucker went to see Price. As to what took place, Price testified as follows:

"Q. Tell what was said then. A. Well, I had heard on Monday, through a traveling man, that Mr. Rucker was negotiating elsewhere and as reports of that kind often get out I didn't believe it but on Tuesday when Mr. Rucker came in I told him that the creditors of Long and Son would insist upon the continuance of the Long lease and he said that they had no lease whatever, and I said, "Well, they expect to hold possession of the property under the lease" and he said that "anybody who went in there would have a fight."

Plaintiff at this point attempted to have the witness explain what he meant in the foregoing testimony, but on objection from the defendants, this was not allowed. Price then testified:

"Q. Well, tell what he said. A. He said that any one who went in there would have a fight and as we continued the conversation of course we talked for twenty or thirty minutes and I don't remember everything that was said but he finally wound up, after I had stated again that they expected to hold the premises, he said 'Well, damn them, I will show 'em,' and he left and that is the last time I had any conversation with him."

"Q. Well, was this money furnished Kistler and the deal closed? A. No.

"Q. Tell the jury why. A. Well, after these statements from Mr. Rucker I would not--I knew that there was a lawsuit--that Mr. Rucker intended to fight possession and I was not willing to furnish the money to go in and buy a lawsuit.

"Q. Did you so report to Mr. Kistler? A. No. Mr. Kistler sent word to me; why didn't we close it up--my his son--and I just told him the deal was off, or something of that kind.

"Q. In that last conversation with Mr. Rucker did he give you his reasons for his statements?

"By Mr. Corum: Let him tell what he said.

"By the court: Very well. Just state everything that was said.

"A. Well, we talked for twenty or thirty minutes and of course in a conversation of that kind a man could not remember the exact conversation, but the gist of it was that he was not going to let anybody go in there and that he wanted possession of that property and that is what I understood from his conversation."

And on cross-examination, Price further testified:

"Q. And then he said that anybody that went in there would have a fight? A. Yes, sir.

"Q. And you understood from that language that he meant a fight in court--a lawsuit? A. Yes, sir.

"Q. And then you ceased to negotiate further with Mr. Kistler? A. Yes, sir.

"Q. You sent word to him by his son that the deal was off? A. Yes, sir. His son was sent to me to know why I hadn't closed the deal.

"Q. And you sent word that the deal was off? A. yes, sir.

"Q. Was that all the word that you sent Mr. Kistler? A. Yes, sir; that is all I remember."

Plaintiffs being thus deprived of the benefit of a sale to Kistler, was compelled to turn over their stock to creditors and it was sold for $ 1461.76 instead of $ 4200 as it would have been had Kistler been able to get the money Price had agreed to lend him and to get the unexpired lease which would enable him to continue the business at the old location which was a valuable element in a business of that kind.

Plaintiffs' cause of action is based on the charge that defendants maliciously, and without probable cause, stated to Price that "they (meaning the plaintiffs) have no lease whatever" and that "any body that goes in there (meaning into said premises) will have a fight," and that on being told that the plaintiffs expected to hold said premises under said lease, defendant Rucker also said to Price "Damn 'em, I will show them."

To our minds the evidence shows very clearly that the determined and unnecessarily...