Putnam v. Boyer

• Decision Date: 07 July 1913
• Citation: 158 S.W. 861
• Parties: PUTNAM v. BOYER et al.
• Court: Missouri Court of Appeals

158 S.W. 861

PUTNAM v. BOYER et al.

Springfield Court of Appeals. Missouri.

July 7, 1913.

1. RELEASE (§ 24) — RESCISSION — CONDITION PRECEDENT.

When a release of a cause of action has been given by plaintiff, and in reply to an answer setting it up he seeks to avoid or rescind by pleading fraud in its procurement, he must also plead and prove a return or tender of the amount paid for such release as a condition precedent to his right of action; but, where the amount paid is conceded to be due in any event, or where it is part payment of an undisputed liquidated claim no such tender is necessary.

2. RELEASE (§ 17) — VALIDITY — FRAUD AS TO MATTERS OUTSIDE RELEASE.

In an action for a commission, where defendant pleaded payment and release in full settlement, and where the plaintiff admitted the giving of the receipt in settlement, fraud in defendant's representations as to his insolvency and the inability of plaintiff to collect anything, without which plaintiff would not have signed the release, was fraud outside of the contents the release which would not invalidate it.

3. RELEASE (§ 13) — VALIDITY — DISPUTED CLAIM.

A release given for a less sum than is claimed to be due is valid and binding between the parties, when the amount of the claim is unliquidated, or there is a bona fide disagreement as to the sum actually due.

4. APPEAL AND ERROR (§ 1029) — HARMLESS ERROR — ERROR IN DECISION CORRECTED.

Where plaintiff is not entitled to judgment in any event, the case cannot be reversed on his appeal for error occurring during the trial, as the judgment is for the right party regardless of such error.

5. TRIAL (§ 19) — PRESENCE OF JUDGE.

It is the duty of the trial judge to be present from the opening until the close of a trial, in order to superintend the proceedings, and give protection and security to parties, and to restrain counsel in their arguments from going outside of the record or exceeding the bounds of legitimate discussion, and if he finds it necessary to absent himself, he should suspend all proceedings until his return.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by E. J. Putnam against Jerome Boyer and others. Judgment for defendants, and plaintiff appeals. Affirmed.

J. N. Burroughs, of West Plains, for appellant. M. E. Morrow, of West Plains, for respondents.

STURGIS, J.

The plaintiff sues the defendants for $1,450, alleging that defendants agreed to pay plaintiff 5 per cent. commission on a real estate trade of which plaintiff was the procuring cause, the commission to be based on the consideration of the trade, which was $34,000, making the total commission due him $1,700, of which defendants paid $250. The answer denied that defendants had so promised, or that plaintiff was the procuring cause of the trade, and denied that defendants owed the plaintiff anything, and further averred that, after the trade had been consummated, in order to avoid litigation with plaintiff, they paid him the sum of $250, which plaintiff agreed to and did accept in full payment of his claim for commission on the basis of $250, as a complete settlement. The reply of plaintiff admitted the payment of the $250, and the execution of a receipt for that amount in full settlement of the claim, but that same was obtained by false and fraudulent representations relating to defendants' insolvency and the inability of plaintiff to collect anything, and "that plaintiff would not have signed same had he not believed and relied on such representations as being true." The defendants demurred to this reply on this and other grounds: "Because in said reply the plaintiff admits that he signed the receipt mentioned in defendants' said second count of their answers, and accepted the $250 paid plaintiff by the defendants, and said reply does not allege that said $250 has ever been repaid to the defendants, or that said repayment was ever tendered; and no such payment is now tendered by plaintiff, when he seeks to avoid the effect of such full receipt against him in this court." The demurrer (more properly a motion to strike out) being overruled, the defendant by rejoinder protested against being required to plead to said answer, or go to trial thereon, for the reason that plaintiff has never paid nor tendered payment to defendants of the $250 paid plaintiff by defendants in full and complete settlement of plaintiff's cause of action, but denied the fraud, and set up some new matters as to plaintiff's knowledge of defendants' solvency before he finally accepted the $250 in full settlement. We find no surrejoinder in the case. On a trial the jury found a verdict for defendants. The errors assigned are that the verdict is against the law and evidence, and that the judge of the court absented himself from the courtroom during the progress of the trial, and while counsel for defendants was arguing the case to the jury.

It is urged in this court, as it was in the lower court, that defendants are entitled, on the pleadings and uncontroverted facts of the case, to the same judgment as was later awarded to them on the verdict of the jury; that the court should have stricken out of the reply the part setting up the procurement of the release by fraud, and should have directed a verdict for defendants at the close of the evidence. The pleadings admit, and the uncontradicted evidence shows, that defendants were denying all liability to plaintiff for commissions, and that after much controversy and several attempts at settlement the defendants paid plaintiff the sum of $250, and plaintiff executed and delivered to them this receipt: "West Plains, Mo. March 20, 1911. Received of B. B. Heafford for Jerome W. Boyer and L. F. Boyer, two hundred and twenty-five dollars — 225.00 — in full payment for services rendered on account of the trade of the Louisiana land to T. J. Walton. E. J. Putnam." The plaintiff, while admitting the giving of this receipt, and the payment of the money to him in full settlement of the claim he now sues for, seeks to avoid the effect of the same by pleading fraud in its procurement, without at any time returning or offering to return the money so paid him. Can he do this? We think not.

The law seems to be settled in this state that, when a release of a cause of action has been given by plaintiff, and such plaintiff by reply to an answer setting up such release seeks to avoid or rescind such release by pleading fraud in its procurement, plaintiff must also plead and prove a return or tender of the amount paid for such release. No right of action accrues to plaintiff without such return or tender. Boehm v. American Patriots, 154 S. W. 448 (not yet officially reported); Carroll v. United Railways, 157 Mo. App. 247, 289, 137 S. W. 303; Lomax v. Electric Railway, 119 Mo. App. 192, 198, 95 S. W. 945; Implement Co. v. Ellis, 125 Mo. App. 692, 103 S. W. 127; Hancock v. Blackwell, 139 Mo....