National Bank of Rolla v. Romine

• Citation: 136 S.W. 21,154 Mo. App. 624
• Parties: NATIONAL BANK OF ROLLA v. ROMINE et al.
• Decision Date: 03 April 1911
• Court: Court of Appeal of Missouri (US)

136 S.W. 21

154 Mo. App. 624

NATIONAL BANK OF ROLLA v. ROMINE et al.

Springfield Court of Appeals. Missouri.

April 3, 1911.

1. JURY (§ 131)—EXAMINATION OF JUROR— DISCRETION OF COURT.

Great liberality should be allowed counsel in the voir dire examination of jurors, so that information necessary to enable them to exercise their peremptory challenges intelligently may be secured.

2. APPEAL AND ERROR (§ 1045)—HARMLESS ERROR—EXAMINATION OF JURORS ON VOIR DIRE.

Where each juror, on his voir dire examination, stated, in response to the questions of the court, that he was free from prejudice and would try the case fairly on the evidence and the law, the error, if any, in excluding a question of counsel for the defeated party which sought to elicit the same information, was not prejudicial.

3. PLEADING (§ 387) — ISSUES, PROOF, AND VARIANCE.

A party may not recover or defend on a cause of action not pleaded.

4. BILLS AND NOTES (§ 505)—DEFENSES—FRAUD—EVIDENCE—ADMISSIBILITY.

Where, in an action by an alleged bona fide purchaser of a note, claimed to have been fraudulently obtained by the payee, the evidence showed that the payee was a professional swindler, that he obtained the note to defraud the maker, who executed the note after negotiations with the payee that territory should be furnished the maker in which to sell a patented article, evidence that the payee guaranteed to furnish territory in which the article could be sold was admissible as a part of the general scheme to defraud.

5. TRIAL (§ 251)—INSTRUCTIONS—ISSUES.

An issue not raised by the pleadings ought not to be submitted to the jury.

6. APPEAL AND ERROR (§ 1066)—HARMLESS ERROR—ERRONEOUS INSTRUCTIONS.

Where, in an action by an alleged bona fide purchaser of a note claimed to have been fraudulently obtained, there was evidence that the payee obtained the note fraudulently and without consideration, the error, if any, in submitting the issue of failure of consideration, because not properly pleaded, was not prejudicial.

7. APPEAL AND ERROR (§ 882)—QUESTIONS REVIEWABLE—INVITED ERROR.

A party inviting or acquiescing in an instruction may not complain thereof on appeal.

8. APPEAL AND ERROR (§ 215)—RESERVATION OF QUESTIONS—INSTRUCTIONS—OBJECTIONS.

A party permitting the submission, without objection, to the jury of an issue, may not complain of an instruction correctly stating that the issue of fact may be proved by circumstantial evidence.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Action by the National Bank of Rolla against W. T. Romine and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Harry Clymer and Frank H. Farris, for appellant. Watson & Holmes, for respondents.

COX, J.

This is the second appeal in this case. The first is found in 136 Mo. App. 57, 117 S. W. 104. In the first trial the verdict of the jury was in defendants' favor, and upon plaintiff's appeal the judgment was reversed and the cause remanded for new trial on account of error in the instructions. The case was retried upon the same evidence, and defendants were again successful, and plaintiff has again appealed.

This action is based upon a promissory note payable to one C. A. Post, and made payable at the National Bank of Rolla of Rolla, Mo., and plaintiff sues as indorsee. The answer sets up fraud and want of consideration and purchase by plaintiff with notice.

The first error complained of by plaintiff relates to the action of the court in sustaining objection to a question asked by plaintiff of the jurors upon their voir dire examination. After the jurors had been interrogated generally and had answered satisfactorily, counsel for plaintiff asked the following question: "Q. As it has been stated before, by counsel and by the court, this suit is upon a note claimed to have been executed by Mr. Romine to a man by the name of Post, as a consideration of purchase of a kitchen cabinet, or a patent right. Now, if it should develop that Mr. Romine actually received no valuable consideration for this note, would that fact preclude you from giving a verdict in favor of the bank, if the court would instruct you that, under the law, the bank would be entitled to a verdict if it purchased the note, before maturity, for a valuable consideration, and without the knowledge of this fraud being perpetrated by Post upon Romine?" Upon objection being made to this question, the court then asked the following question: "Q. Gentlemen, have you got any prejudice, in any way, against either of these parties, plaintiff or defendant?" To which question the entire panel of jurors answered in the negative. "Q. Can you and will you go into the jury box and try the cause fairly on the testimony and the law, as declared by the court? What do you all say?" To which question the entire panel of jurors answered, "Yes." The court then sustained the objection to plaintiff's question. Counsel for plaintiff now insists that this was...