Louisiana Purchase Exposition Company v. Emerson
| Decision Date | 06 February 1912 |
| Citation | 143 S.W. 843,163 Mo.App. 465 |
| Parties | LOUISIANA PURCHASE EXPOSITION COMPANY, Appellant, v. LUKE M. EMERSON, Respondent |
| Court | Missouri Court of Appeals |
Argued and Submitted January 11, 1912.
Appeal from Pike Circuit Court.--Hon. David H. Eby, Judge.
AFFIRMED.
Judgment affirmed.
L. L Leonard and Tapley & Fitzgerrell for appellant.
(1) Instructions should cover the whole case and should not be so framed as to single out isolated portions of the evidence not in themselves decisive and make the verdict turn upon them. Thompson on Trials, sec. 2328; Weil v. Schwartz, 21 Mo.App. 382; Chappell v. Allan, 38 Mo. 222; Williams v. Stephens, 38 Mo.App. 164; Judd v Railroad, 23 Mo.App. 62; Capp v. Hardy, 32 Mo.App. 592; Gage v. Mears, 107 Mo.App. 140; McKnight v. Hudson, 116 Mo.App. 551; Steinwender v. Creath, 44 Mo.App. 361. (2) It is error to instruct on points already covered by other instructions. The repetition tends to encumber the record and to confuse and embarrass the minds of the jury and it is also liable to give undue prominence to the proposition repeated. Redmond v Cotton Mills, 100 S.W. 187; Sizemore v. Railroad, 130 S.W. 1025; 11 Ency. of Pl. and Pr., p. 288 et seq.; Buck v. Railroad, 108 Mo. 189; Railroad v. Raslay, 14 Md. 442; Haney v. Caldwell, 43 Ark. 193. (3) The principal is bound by the acts of his agent within the scope of his authority, and where the agent errs or fails, and loss occurs, the damage will fall on the principal who is responsible for the existence of the agency, rather than on innocent parties. Story on Agency, p. 144; 1 Am. and Eng. Ency. Law, 990; Johnson v. Hurley, 115 Mo. 520; Kinrely v. Burd, 9 Mo.App. 362. (4) Although the granting or refusing of new trials, on the ground that the verdict is against the weight of the evidence is a matter particularly for the discretion of the trial court, yet, the appellate court will interfere when it appears that injustice has been done or that the authority of the court has been unsoundly or arbitrarily exercised. Joy v. Cale, 124 Mo.App. 575; Caruth v. Richeson, 96 Mo. 192; Reichenbach v. Ellerbe, 115 Mo. 596; Milem v. Freeman, 136 Mo.App. 117; Ockley v. Staeblin, 56 Mo. 558; Whitsett v. Ransom, 79 Mo. 258; Spohn v. Railroad, 87 Mo. 84; Garrett v. Greenwell, 92 Mo. 125.
J. D. Hostetter, for respondent, filed argument.
This is the second appeal in this case, it having been heretofore in this court on an appeal by plaintiff from an order sustaining a motion for new trial as to the second count in the petition. The action of the circuit court was sustained by this court, the cause going back to the circuit court for trial. The second trial was had on the second count of the petition, the third count having been dismissed and there being a verdict and judgment for plaintiff on the first count on a $ 500 subscription, from which defendant took no appeal. At this last trial verdict and judgment went in favor of defendant on the second count, which was founded upon an alleged subscription of $ 2000 to the plaintiff corporation by defendant. From this, after a motion for a new trial and exceptions duly saved, plaintiff has appealed to this court. The opinion of this court on the first appeal will be found under the title Louisiana Purchase Exposition Co. v. Luke M. Emerson, 149 Mo.App. 594, 129 S.W. 753. In the present trial defendant took the stand and was examined as a witness in his own behalf and admitted that the letter written by Mr. Crooks, who was dead at the time of the trial, had been written by the authority of the defendant. The newspaper publications, the admission of which was held error when the case was here before, were not again offered. It was in evidence in this last trial that at a public meeting held in St. Louis for the purpose of promoting the exposition enterprise, defendant had been present and had subscribed, in writing and on a subscription blank, to $ 500 of stock in the enterprise. After this meeting defendant returned to his home in Bowling Green, apparently very enthusiastic over the whole scheme. A day or two after his return home he wrote this letter:
David R. Francis, to whom this letter was addressed, was the president of the Exposition Company. This letter and the subsequent acts of defendant were in evidence and relied upon by plaintiff as proof of defendant's subscription to the additional $ 2000 of stock in the exposition enterprise. There was evidence on the part of plaintiff tending to show that on several occasions defendant had written and referred to the matter of his having $ 2500 worth of stock in the enterprise, and on part of defendant there was evidence tending to show that he had not in fact subscribed and had no intention to himself subscribe for the $ 2000 but intended to procure subscribers when he received proper subscription blanks. Defendant testified positively that he had not taken the additional 2000 shares. There was no evidence that the blanks referred to in the letter were ever sent to defendant by plaintiff, or that he had ever signed any subscription paper except the one for the 500 shares which he had at first taken, or that certificates of stock had ever been issued or tendered him on this alleged subscription. The plaintiff had frequently written to him demanding payment, but he had always repudiated the subscription. He did subscribe, pay for and receive certificates of stock for the $ 500 subscription.
The errors assigned by appellant in the present appeal are to the action of the trial court in refusing a new trial, and to alleged error in giving defendant's instructions 2 and 4. It is also claimed that the verdict is against the law and the evidence and the law under the evidence and against the weight of the evidence and that it should have been against defendant instead of against plaintiff.
The assigned ground that the verdict is against the weight of the evidence, must be overruled. That was a matter for the determination of the trial court after the jury had returned its verdict.
Nor can we say...
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