Murphy v. St. Louis Type Foundry

• Citation: 29 Mo.App. 541
• Parties: P. C. MURPHY, Respondent, v. ST. LOUIS TYPE FOUNDRY, Appellant.
• Decision Date: 28 February 1888
• Court: Court of Appeal of Missouri (US)

29 Mo.App. 541

P. C. MURPHY, Respondent, v. ST. LOUIS TYPE FOUNDRY, Appellant.

Court of Appeals of Missouri, St. Louis.

February 28, 1888

APPEAL from the St. Louis Circuit Court, HON. SHEPARD BARCLAY Judge.

Reversed and remanded.

DYER LEE & ELLIS and THOMAS METCALF, for the appellant: The court committed error in admitting an abandoned answer made by the defendant in another suit. Whittlesey's Mo. Prac 289; Corley v. McCabe, 9 Mo.App. 68; Breckenkamp v. Reese, 3 Mo.App. 585; Machine Co. v. Pierce, 5 Mo.App. 575; Brown v. Fector, 7 Wend. 301. The third instruction is clearly erroneous and practically nullifies the effect of instruction numbered five, given at the instance of defendant. It tells the jury, in effect, that if the representations made by plaintiff's architect concerning the strength of the then unfinished building in controversy, made in plaintiff's presence and hearing, was an expression of opinion, as contradistinguished from a statement of fact, then the defendant is not estopped from claiming damages, even though the defendant subsequently made the subtenant lease to the Compton Lithograph Company upon the strength of such representation or opinion. Justice v. Town of Lancaster, 20 Mo.App. 559; Union Savings Association v. Kehlor, 7 Mo.App. 158; Taylor v. Saugrain, 1 Mo.App. 312; Rice v. Groffman, 46 Mo. 434.

CAMPBELL & RYAN, for the respondent: The court did not err in admitting in evidence the original and amended answers, in the case of Compton Lithograph Co. v. St. Louis Type Foundry. Dowzelot v. Rawlings, 58 Mo. 75, 77; Turner v. Baker, 64 Mo. 231, 245; Ellis v. Jameson, 17 Me. 235; Cragin v. Carleton, 21 Me. 492; Wells v. Compton, 3 Rob. 171-182; Tiley v. Cowling, 1 Ld. Raym. 744; 1 Greenleaf on Evid., secs. 186, 195, 205, 527 a; Priest v. Way, 87 Mo. 28, 32, 33. The mere expression of an opinion by plaintiff, or his architect (if speaking for him), concerning the strength of the building, would not be binding on plaintiff and create an estoppel, as claimed by counsel. Hammerslough v. Kansas City Ass'n, 79 Mo. 85-6; Walsh v. Morse, 80 Mo. 568, 573; Caldwell v. Henry, 76 Mo. 254, 260; Dunn v. White, 63 Mo. 181, 185. No man can set up the conduct of another as an estoppel where he knew or had the same means of knowledge as to the truth of the statement as the other party. Spurlock v. Sproule, 72 Mo. 510; Bales v. Perry, 51 Mo. 453; Douglass v. Cissna, 17 Mo.App. 44, 62, 63; 31 Pa.St. 334. The case, tried below, was dependent on questions of fact. The testimony on nearly all the material points was contradictory, and the verdict of the jury upon these disputed facts will not be disturbed by this court. Blenney v. Railroad, 87 Mo. 635-642; Rosecrans v. Railroad, 83 Mo. 678-682-683; Meyers v. Union Trust Co., 82 Mo. 237-241; Cape Girardeau Co. v. Bruitil, 51 Mo. 144; Moore v. Pieper, 51 Mo. 157; Brown v. Railroad, 13 Mo.App. 465-6; Hill v. Sutton, 8 Mo.App. 353-356; Hitchler v. Voelker, 8 Mo.App. 492-3.

OPINION

THOMPSON J.

The plaintiff leased to the defendant a building, and the defendant sublet a portion of it to the Compton Lithograph Company. The portion used by the Lithograph Company was injured while in its use, by the weight of its presses and the vibrations produced by them, as the plaintiff's evidence tends to show, but by the inherent defects of the building, as the defendant's evidence tends to show. The plaintiff repaired the damage at considerable expense, and brought this action against the defendant, as his lessee, to recover the money so expended. There was a trial by jury and a verdict and judgment for the plaintiff, from which the defendant appeals. Although the record is voluminous and the testimony on most points conflicting, the rulings of the trial court which are challenged by the appellant may be treated within a small compass.

I. The first assignment of error is that the trial court committed error in admitting in evidence an abandoned answer which had been filed by defendant in a former action brought against it by the Compton Lithograph Company. It is to be regretted that there should be any doubt as to the law upon such a question; but we find that there is a conflict of opinion upon it in the decisions in this state, in several of which it has not been well considered. In Priest v. Way, 87 Mo. 16, 27, 28, it was held that while the deposition of a party may be read against him as an admission in another cause, yet it cannot be read against him in the same cause in which it was taken, if he is present at the trial ready to testify and makes specific objection to its being read. This decision overruled on this point a case decided but shortly before (Pomeroy v. Benton, 77 Mo. 82), and the conclusion is weakened by a strong dissenting opinion by Sherwood, J., who holds that the admissions of a party are evidence against him, no matter where made. Prior to this decision, it had been several times ruled by this court that an abandoned pleading cannot be read in evidence as an admission by the opposite party on the trial of the same case in which the pleading was filed. Corley v. McKeag, 9 Mo.App. 41; Owens Co. v. Pierce, 5 Mo.App. 576; Breckencamp v. Rees, 3 Mo.App. 585. In the case of Corley v. Mc Keag, supra, the case of Dowzelot v. Rawlings, 58 Mo. 75, was distinguished, on the ground that the paper there introduced belonged to another case, and had never been a pleading in the case on trial, thus apparently recognizing a distinction between the admissibility of the pleading in a case on trial and a pleading which had been filed in another case. Turning to Dowzelot v. Rawlings, supra, we find nothing in the opinion which indicates that the pleading in the other case, which was held admissible in evidence, was an abandoned pleading. In the subsequent case of Turner v. Baker, 64 Mo. 228, 245, it was held that the petition in another action of ejectment, sworn to as required by the state of the law existing at the time when it was filed, was admissible as a solemn admission of the party who was plaintiff in that action respecting the fact of his being out of possession at that time; but it does not appear that this was an abandoned petition. Coming down to the late case of Anderson v. McPike, 86 Mo. 293, 301, we find that it was ruled that an abandoned answer filed by the defendant in the same case was competent evidence against him. If an abandoned answer filed by a defendant in the same case is now to be regarded as competent evidence against him, for at least equal reasons the rule must be the same in respect of an abandoned answer filed by him in another case; and such would seem to be the proper rule on principle. Admissions of a party against his own interests, voluntarily made, are, as a general rule, evidence against him, without reference to the time when, the place where, or the circumstances under which, they were made; and the fact that they were subsequently retracted cannot in reason deprive them of their competency as evidence, although it may affect their credibility. Why this principle should not apply to abandoned pleadings in all cases, whether originally filed in the case on trial or in some other case, I am unable to perceive, unless it has come to be the rule that the law has such a remote concern with justice that parties are not expected to tell the truth in the pleadings which they file in civil proceedings. In view of the decision of the Supreme Court last cited, we cannot say that error was committed in admitting in evidence this abandoned answer.

II. The other assignment of error challenges the second instruction given at the request of the plaintiff. The defendant had given evidence (controverted by the plaintiff) tending to show that, before the lease was signed by the plaintiff to the defendant, the defendant cast about to find a sub-lessee to take a portion of the building, not wishing to occupy the whole building itself, and wishing...