Miller v. Drake

• Decision Date: 31 May 1876
• Parties: HENRY MILLER, Respondent, v. JOSHUA H. DRAKE, Appellant.
• Court: Missouri Supreme Court

62 Mo. 544

HENRY MILLER, Respondent,

v.JOSHUA H. DRAKE, Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Livingston Circuit Court.

Jonas J. Clark, for Appellant.

H. M. Pollard, for Respondent.

NAPTON, Judge, delivered the opinion of the court.

This action was brought to recover of the defendant, who was plaintiff's agent in the sale of land, a sum of money alleged to have been fraudulently retained by the agent, upon a false representation of the price at which the land was sold.

The plaintiff and his brother, who both lived in Ohio, owned 200 acres of land in Livingston county, of which the plaintiff owned 80 acres and his brother 120 acres, and they gave the defendant a power of attorney to sell the land at any price, not less than eleven dollars per acre. The petition alleges that the tract was sold at $15 per acre, and that the sale at the price of $11 per acre was reported to the plaintiff, and this defendant retained $4 per acre, or $320, which he had no right to retain; and the suit was to recover this sum and interest.

After an answer and replication, the issues were submitted to a jury.

The defendant objected to any evidence being introduced, on the ground that no cause of action was stated in the petition. This was overruled and evidence on both sides was given.

The evidence for plaintiff tended to show, that the defendant sold the land to one Deems for $15 an acre in December, 1868; that no written contract was made, and no conveyance made directly to Deems; but that in the early part of the succeeding year conveyances were made to Norville, a son-in-law of defendant, and by Norville to Deems. The conveyance to Norville was upon the cousideration of eleven dollars per acre, and that of Norville to Deems was for fifteen dollars per acre. The sale was reported by defendant to plaintiff as a sale at eleven dollars per acre.

The defendant gave evidence to show, that the sale to Norville was fairly made and consummated before any negotiation with Deems. The testimony of the parties, plaintiff and defendant, and of Norville, was admitted without objection.

The defendant, in addition to the statements of Norville and himself, offered to prove that the plaintiff was very old and could neither read nor write, and that all his business was transacted by his son and one Kettle, who had an interest in the 120 acres, which defendant sold, and then offered to read various letters from Kettle to defendant, and letters from defendant to Kettle, to show that he had authority to trade with Norville at eleven dollars per acre, and that he closed the trade by their assent, and that he advised them duly of such sale, and that they ratified it. This evidence was offered in various shapes, and as one of the objections to it was, that the answer set up no such defense, an amended answer was proposed; but the court refused to permit the answer to be so amended, and refused to permit any of the evidence. Exceptions to this ruling were duly taken.

The court gave three instructions for plaintiff:

1. That, unless the sale to Norville was in good faith and consummated before the sale to Deems, the plaintiff was entitled to a verdict.

2. This instruction was the stereotyped one about the right of juries to disregard witnesses who swore falsely.

3. That, unless they believed the Norville contract was in good faith, and not for the purpose of enabling the defendant and Norville to hold said land and sell at an advance, they should find for plaintiff.

4. That, if the sale to Norville was made with an understanding between Drake and Norville, whereby said land was to be sold to Norville nominally, but was really to be sold to some other party at a price greater than eleven dollars per acre and the excess to be retained by said Drake or Norville, then said sale to Norville was not in good faith, although fifty dollars was paid on it.

5. The damages are $320 with interest at the rate of 6 per cent. from January 16th, 1869.

And the court further instructed the jury at the instance of defendant:

1. That, unless the plaintiff has established by a preponderance of testimony, that defendant Drake, as the agent of plaintiff, sold said land to Deems for $15 per acre, and fraudulently retained $4 per acre of the price, they will find for defendant.

2. If defendant Drake sold the land to Norville in good faith on his, defendant's, part before the sale to Deems, and transmitted to plaintiff his part of the purchase money, less defendant's commission, the jury will find...