Northrop v. Diggs

• Decision Date: 14 December 1909
• Citation: 123 S.W. 954,146 Mo.App. 145
• Parties: FRANK B. NORTHROP, Respondent, v. W. P. DIGGS, Appellant
• Court: Missouri Court of Appeals

123 S.W. 954

146 Mo.App. 145

FRANK B. NORTHROP, Respondent, v. W. P. DIGGS, Appellant

Court of Appeals of Missouri, St. Louis

December 14, 1909

Appeal from St. Louis City Circuit Court.--Hon. Geo. H. Shields Judge.

AFFIRMED.

Judgment affirmed.

John A Gilliam for appellant.

(1) The respondent made no case under his pleadings, and appellant's demurrer to the evidence, offered both at the close of plaintiff's case, and at the close of the entire case, should have been given, and the court erred in refusing the same and as plaintiff on this the third trial has failed to make a case and cannot improve on it, this cause should be reversed without remanding. Bassford v. West, 124 Mo.App. 248; Loving Co. v. Hesperian Cattle Co., 176 Mo. 332; Ingwerson v. Railroad, 103 S.W. 1143; McCrory v. Kellogg, 106 Mo.App. 597; Haas v Ruston, 14 Ind.App. 8, 42 N.E. 298; Van Dyke & Co. v. Walker, 49 Mo.App. 381; Featherston v. Trone, 102 S.W. 196. (2) The court erred in permitting plaintiff's counsel to make statements about a proposed sale of the lease by Diggs to Northrop, and admitting evidence in regard to such proposed sale, which was entirely outside the issues, was purposely and premeditatedly brought in to try to influence the jury, and was extremely prejudicial to appellant. Peck v. Traction Co., 110 S.W. l. c. 661; Taylor v. Schofield, 191 Mass. 1; State v. Kaufmann, 118 N.W. 337. (3) The court erred in excluding competent evidence offered by defendant as to what took place when Diggs first met Benoist, and as to the reasonable value of services in sale of a lease. Cornelius v. Grant, 8 Mo. 59; Kelly v. Phelps, 57 Wis. 425; Louis v. Louis, 114 S.W. 1150; State v. Murphy, 90 Mo.App. 548; Gage v. Trawick, 94 Mo.App. 307; Ruschenberg v. Railroad, 161 Mo. 70; Mead v. Arnold, 110 S.W. 656. (4) The court erred in compelling defendant to make his offers of proof in a low voice, so that the jury could not hear, thus preventing defendant from having a public trial, and preventing defendant from submitting a bill of exceptions signed by bystanders, and absolutely depriving defendant of his statutory right to have such a bill, and by the court's conduct humiliating defendant's counsel, and prejudicing the jury against the defendant. Louis v. Louis, 114 S.W. 1150; State v. Murphy, 90 Mo.App. 548; Ruschenberg v. Railroad, 161 Mo. 70; Gage v. Trawick, 94 Mo.App. 307; Hoyt v. Williams, 41 Mo. 270; Bowen v. Lazalere, 44 Mo. 383; Norton v. Dorsey, 65 Mo. 376; Garth v. Caldwell, 72 Mo. 630; Klotz v. Perteet, 101 Mo. 213; State v. Jones, 102 Mo. 307; Sec. 730, R. S. Mo. 1899; Bagley v. Mason, 37 A. 288; Hicks v. Hicks, 142 N.C. 231; Holland v. Williams, 126 Ga. 617. (5) The representation by respondent that he owned the lease estops him from claiming to have been Diggs' agent, and defeats any claim for commissions. Hahl v. Kellogg, 94 S.W. 391; Haas v. Ruston, 14 Ind.App. 8; Featherston v. Trone, 102 S.W. 196; Taylor v. Godbold, 76 Ark. 395. (6) The court erred in giving instructions for respondent. Wylie v. Bank, 61 N.Y. 415; Newton v. Ritchie, 75 Iowa 91; Shrack v. McKnight, 84 Pa. 26; Steele v. Crabtree, 106 N.W. 753; Mead v. Arnold, 110 S.W. 656; Paddock v. Somes, 102 Mo. 226; Crow v. Railroad, 111 S.W. 583; Flint-Walling Co. v. Ball, 43 Mo.App. 510; Sterling v. De Laune, 105 S.W. 1173. (7) The court erred in refusing instructions offered by appellant. Haas v. Ruston, 14 Ind.App. 8; Featherston v. Trone, 102 S.W. 196; Taylor v. Godbold, 76 Ark. 395; Bassford v. West, 124 Mo.App. 248; Loving Co. v. Cattle Co., 176 Mo. 332; Ingwerson v. Railroad, 103 S.W. 1143; McCrory v. Kellogg, 106 Mo.App. 597; Van Dyke & Co. v. Walker, 49 Mo.App. 381.

Bernard Greensfelder and Abbott, Edwards & Wilson for respondent.

(1) The sufficiency of the evidence to sustain the verdict will not be reviewed where there have been three successive verdicts for the same party. Burns v. Peck, 17 Mo.App. 580; Haycraft v. Griggsby, 94 Mo.App. 74; Dodd v. Guiseffi, 100 Mo.App. 311; Railroad v. Adams, 10 Ky. Law Rep. 713; Penn v. McLoughlin, 36 Iowa 538; Krummer v. Christopher, 35 N.Y.S. 1066; Winsor v. Cruise, 79 Ga. 635; Parmly v. Farrar, 204 Ill. 38. (2) Though the appellate court may believe the weight of the evidence is in favor of defendant, it cannot hold that the plaintiff should not recover where the trial court on the evidence, might have so held and refused to exercise the discretion vested in it to set aside the verdict. Colyer v. Railroad, 93 Mo.App. 147; Woodward v. Cooney, 111 Mo.App. 152; Vastine v. Rex, 93 Mo.App. 93; Kitchen v. Railroad, 59 Mo. 514; City of Memphis v. Mathews, 28 Mo. 248. (3) No judgment should be reversed for an error that does not materially affect the merits of the action. Sec. 659, R. S. 1899; Water & Light Co. v. City of Lamar, 140 Mo. 145; City of Linneus v. Dusky, 19 Mo.App. 20. (4) Trivial errors in the admission or rejection of evidence will not work a reversal when the controlling facts are so fully established as to leave no question of the justice of the verdict. Miller v. Newman, 41 Mo. 509; Von De Vilda v. Judy, 143 Mo. 348. (5) Where an erroneous ruling on evidence does not materially affect the merits of the action, the judgment will not be reversed when for the right party. Sec. 865, R. S. 1899; Gardner v. Railroad, 135 Mo. 90; Goodrick v. Harrison, 130 Mo. 263; Swope v. Ward, 185 Mo. 316; Bragg v. Railroad, 192 Mo. 331; Sebre v. Patterson, 92 Mo. 451; Deal v. Cooper, 94 Mo. 62. (6) It has been repeatedly declared by the appellate courts of this State that where real property has been placed in the hands of an agent for sale, and a sale is brought about through his exertions, or, which is the same thing, if he is the procuring or proximate cause of the sale, he is entitled to the commission. And this is so even where the principal or another or other persons or agents may have conducted the final transfer of the property or may have varied the terms of the first negotiation. Wright & Orrison v. Brown, 68 Mo.App. 582. The question whether plaintiff was authorized to negotiate for the sale of the lease, and as to whether or not he was the procuring cause of the sale thereof, was under the evidence for the jury. Ballentine v. Mercer, 130 Mo.App. 605; Kinder v. Pope, 106 Mo.App. 536; Crane v. Trust Co., 85 Mo.App. 607; Huth v. Dohle, 76 Mo.App. 675; Parson v. Mayfield, 73 Mo.App. 311; West v. Denune, 128 Mich. 11; Palmer v. Durand, 70 N.Y.S. 1105; McCoffrey v. Page, 20 Pa. S.Ct. 400; Roome v. Robinson, 90 N.Y.S. 1055. (7) If the contract sued upon was ever made by the parties it fixed plaintiff's compensation. If it was not made, he was entitled to nothing on the quantum meruit, therefore the evidence of the several real estate agents to show the reasonable value of services rendered was properly excluded. Cole v. Armour, 154 Mo. 333; Veatch v. Norman, 109 Mo.App. 387. (8) The exclusion of the evidence sought of witness O'Fallon was harmless where the fact was fully established by other evidence or in another form. Hill Bros. v. Bank, 100 Mo.App. 230; Love v. Love, 98 Mo.App. 562; Crapson v. Wallace, 81 Mo.App. 680. (9) It is well settled in this State, that where erroneous evidence has been admitted during the trial, the error in its admission may be cured by withdrawing the objectionable evidence from the jury. Anderson v. Railroad, 161 Mo. 420; McGinnis v. Loring, 126 Mo. 404; Larimore v. Railroad, 65 Mo.App. 167; Smith v. Coal Co., 75 Mo.App. 177; Brockman Com. Co. v. Kilbourne, 111 Mo.App. 542. (10) The objections to the statement made by plaintiff's counsel in his opening statement to the jury cannot now be considered, for it is not preserved by the defendant in his motion for new trial. Vawter v. Hultz, 112 Mo. 639; Hamman v. Coal & Coke Co., 156 Mo. 232; Epstein v. Railroad, 197 Mo. 720. (11) If the plaintiff's instructions were not proper and did not cover the facts or issues in the case, the rule is clear that if any omission exists in plaintiff's instructions and it is supplied by those given for the defendant, the error is cured. Anderson v. Railroad, 161 Mo. 427; Meadows v. Ins. Co., 129 Mo.App. 76; Owens v. Railroad, 95 Mo. 169. (12) The court may in its discretion require that offers of evidence be made so as not to reach the ears of the jury and it should adopt this course when the offer to be made threatens to prejudice the party if heard by the jury. Coal Co. v. Fay, 37 Neb. 68.

OPINION

GOODE, J.

Three verdicts have been given for plaintiff in this case and there have been two appeals, the first from an order of the court below granting a new trial, which order was affirmed (115 Mo.App. 91), and the second from a judgment for plaintiff which was reversed because of an error in one of the instructions (128 Mo.App. 217). The facts in the present record are not materially different from what they were before, and are stated fully in the previous opinions. It is necessary to restate them in part in order to make intelligible the points now presented for decision. In the autumn of 1902, defendant owned a leasehold on property on North Main street in the city of St. Louis, which the Terminal Railroad Company would need in order to connect its Eads Bridge tracks with the elevated tracks on the levee. The Missouri Valley Trust Company was endeavoring to acquire for the terminal company, such property as said company needed and among other pieces the property in question. Plaintiff and defendant had their office together at the time, and according to plaintiff's testimony defendant authorized him to sell the leasehold to the terminal company through the Mississippi Valley Trust Company, and agreed to give plaintiff whatever sum above one thousand dollars he could obtain for it. Plaintiff spoke to Mr. Benoist, one of the...