Minteer v. Jenkins
| Decision Date | 07 March 1921 |
| Citation | 229 S.W. 402,206 Mo.App. 642 |
| Parties | MINTEER, WILLIAMS & MINTEER, Respondents, v. M. R. JENKINS, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Livingston County.--Hon, Arch B Davis, Judge.
AFFIRMED.
Judgment affirmed.
Schmitz & Marshall for respondent.
Thos Hicklin, and Scott J. Miller for appellant.
Plaintiff filed suit in the circuit court of Livingston county against defendant to recover the value of certain awnings ordered by defendant and delivered by plaintiff at the residence of the former in the City of Chillicothe.
Plaintiff, a partnership consisting of J. C. Minteer, R. L. Williams and H. W. Minteer, is engaged in the hardware business in Chillicothe. One evening in the latter part of May, 1919, H. W. Minteer, his wife and one Mable Grace were in the home of defendant. There was present also Mrs. Louise Kinney, a daughter of defendant who, at the time, lived in her father's house as a member of his family. Defendant, who is quite deaf, also was present on the occasion in question. The daughter, Mrs. Kinney in the presence of the group there in the house, asked her father if it would be all right for her to order the awnings for the house, referring to the facts that Mr. Minteer was then present. To this inquiry defendant is alleged to have replied "Yes." The order for the awnings was then given to Mr. Minteer by Mrs. Kinney who afterwards selected from samples the material for the same, directed plaintiff in the measurement of the porches, and windows of the house, and instructed him to have the awnings made. Plaintiff ordered the awnings made by some firm not a resident of Chillicothe and, after some delay, the awnings were delivered, about August 4, 1919, at the residence of defendant. It is alleged the awnings would not fit any house other than the one for which they were especially made.
Plaintiff's second amended petition, upon which the case went to trial, alleges that the awnings were ordered and delivered and that defendant had neglected and refused to pay for them. The answer denies that he ordered the awnings and states that if they were ordered through another person, the order was afterwards cancelled. The reply was a general denial of defendant's answer. The suit, on the issue thus joined, was tried and resulted in a verdict for plaintiff in the sum of $ 125, and the case is here on the appeal of defendant.
Objection is made to plaintiff's instruction "A" in that it purported to cover the entire case and direct a verdict and that it omitted an element of the defense, towit: the question of the cancellation of the order for the awnings. Plaintiff contends that the question of cancellation was set forth in defendant's instructions 1, 3 and 5, and that the cancellation of the order was not an element of plaintiff's case.
There is a long line of decisions holding that the giving of an instruction on the part of the plaintiff, purporting to cover the whole case and directing a verdict, which ignores matters of defense properly raised by defendant is improper unless the defect is cured by the giving, on behalf of defendant, of proper instructions covering such matters of defense. Judge SCOTT, in Clark v. Hammerle, 27 Mo. 55, 70-71, announced that
This doctrine has been affirmed and is the doctrine today. Of this decision in the Clark-Hammerle case, GRAVES, J., (quoting Judge LAMM), says, in Wingfield v. Railroad, 257 Mo 347, 166 S.W. 1037, 1041: "It runs, however, hand in glove with another so qualifying it as to make it a useable rule in working out the practical administration of justice in concrete cases, viz., that the mere pretermission in plaintiff's instruction of an element in defendant's case (a part and parcel of the defense interposed) may not work reversible error if that very element is plainly and effectually put to the jury in other instructions on either side in such form as not to cause...
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