Stratman v. Norge Co. of Mo.

• Decision Date: 09 January 1939
• Docket Number: No. 19298.,19298.
• Parties: ROSE STRATMAN, RESPONDENT, v. NORGE COMPANY OF MISSOURI, APPELLANT.
• Court: Missouri Court of Appeals

124 S.W.2d 572

ROSE STRATMAN, RESPONDENT, v. NORGE COMPANY OF MISSOURI, APPELLANT.

No. 19298.

Kansas City Court of Appeals. Missouri.

January 9, 1939.

Appeal from Osage Circuit Court. — Hon. R.A. Breuer, Judge.

AFFIRMED.

Green, Henry & Green, Robert D. Evans, John P. Peters and E.M. Zevely for appellant.

(1) Where by plaintiff's own testimony it appears that the contract sued on was never entered into by defendant, plaintiff is bound by that testimony and no case is made out. McCoy v. Home Oil and Gas Co., 60 S.W. (2d) 715; DeLorme v. St. Louis Public Service Co., 61 S.W. (2d) 247, and cases therein cited; Steele v. Railroad, 265 Mo. 97; Cooper v. Armour & Co., 15 S.W. (2d) 946; Kaden v. Motor Car Co., 26 S.W. (2d) 812. (a) Plaintiff must recover on the contract sued on or not at all. Deisel-Wemmer-Gilbert Corp. v. Chalmers Tobacco Co., 104 S.W. (2d) 1029; Home Trust Co. v. Shapiro, 64 S.W. (2d) 717; Ross Sl. Co. v. Turner Dl. Co., 253 S.W. 119; Fay v. M.P. & L. Co., 33 S.W. 1056. (b) Where the contract sued on and offered in evidence by plaintiff expressly provided for no liability on the part of this defendant, plaintiff is bound thereby. (c) Where plaintiff pleads a contract calling for certain payments by plaintiff, plaintiff must prove performance on her part or the cause fails. Deisel-Wemmer-Gilbert Corp. v. Chalmers Tobacco Co., supra; Jones v. Hill, 18 S.W. (2d) 382; Childs v. St. Louis Basket & Box Co., 271 S.W. 859. (2) Where plaintiff's testimony previously given precludes recovery, a change of that testimony without explanation presents a question of law for the court and plaintiff is not entitled to recover on a theory that impeaches her own testimony. De Lorme v. St. Louis Public Service Co., supra; Steele v. Railroad, supra; O'Bauer v. Katz Drug Co., 49 S.W. (2d) 1065; Kansas City etc. Co. v. Jordan, 316 Mo., l.c. 1129. (3) (a) Declarations and acts of alleged agents are not admissible in evidence without a showing, first, of the agency; second, the authority of the agent, and, third, that the declaration and acts were within the scope of the agency. 2 Jones' Commentaries on Evidence, sec. 255; Mathes v. Switzer Lumber Co., 173 Mo. App. 239; General Motors Acceptance Corp. v. Holland, 30 S.W. (2d) 1087; Johannes v. Union Fuel Co., 199 S.W. 1032. (b) Evidence of damages not claimed in the petition is inadmissible. 17 C.J. 1021, sec. 320; Arnold v. Maryville, 110 Mo. App. 254, and cases cited therein. (4) Where the judgment is an amount far in excess of the damages shown by the competent evidence it cannot stand. (a) Loss of profits which are speculative are not a proper element of damage. Spruce Co. v. Mayes, 62 S.W. (2d) 824.

Hutchison & Hutchison and Booth & Anding for respondent.

(1) This Court will not pass on sufficiency of evidence where it is not fully set out in the record. Manchester Iron Works v. E.L. Wagner Const. Co., 107 S.W. (2d) 89; Bondurant v. Raven Coal Co., 25 S.W. (2d) 566; Weintraub v. Abraham Lincoln Life Ins. Co., 99 S.W. (2d) 160; Carder v. Carder, 60 S.W. (2d) 706, 227 Mo. App. 1005; Gorka v. Gorka, 295 S.W. 515, 221 Mo. App. 1033; Akins v. Adams, 256 Mo., l.c. 17; Scanland v. Walters, 26 S.W. (2d) 603; Thomas v. Land, 30 S.W. (2d) 1035, 225 Mo. App. 246; Breck v. Koeneman, 108 S.W. (2d) 992; Redler v. Travelers' Ins. Co., 117 S.W. (2d) 211. (2) Refusal to give defendant's declaration of law in the nature of a demurrer to the evidence was not reviewable where record did not contain all the evidence. Gillip v. Butts, 77 S.W. (2d) 1014. (3) An assignment of error failing to state how or why action of Court was erroneous is insufficient. Dunn v. Stein, 116 S.W. (2d) 275. An assignment that Court erred in giving a particular instruction is faulty, and standing alone presents nothing for review. Cooper v. K.C. Public Service Company, 116 S.W. (2d) 116. General assignments of error will not be considered by reviewing Court. Bennett v. Royal Union Mutual Life Ins. Co., 112 S.W. (2d) 134. Assignments of error in a general form are insufficient. Nelson v. Massman Const. Co., 120 S.W. (2d) 77. (4) Where a case is brought up and the evidence is stated in narrative form partly and partly by means of questions and answers, and in such manner as to show that the real evidence is not brought up, but only the interpretation and construction placed thereon by appellant, this Court will not review the evidence. Lueckenhoff v. Wuelling, 112 S.W. (2d) l.c. 358. (5) A finding of fact by the trial court is conclusive on appeal when the evidence is not set out in the record. Lueckenhoff v. Wuelling, 112 S.W. (2d) 357. (6) A party who prevailed in the trial court is entitled to have full effect of the testimony favorable to his judgment considered on review. Shelton v. McHaney, 119 S.W. (2d) 931; Slack v. K.C. Gas. Co., 120 S.W. (2d) 70. (7) The matter of weighing evidence and passing on credibility of witnesses was a matter for the trial court sitting as a jury. Realty Co. v. Holtzman, 119 S.W. (2d) 981. (8) In determining whether a demurrer to plaintiff's evidence should have been sustained, evidence must be viewed most favorable to plaintiff. Smith v. Wallace, 119 S.W. (2d) 813. (9) Where no findings of fact or declarations of law are requested or given, this Court must affirm the judgment if possible to do so on any legal ground. Dennis v. Grand River Drainage District, 118 S.W. (2d) 113. (10) It can always be shown that where one who signed a contract, such as that in issue here, in his own name, did so as the agent for another. Jones v. Williams, 139 Mo. 1. A principal may be charged upon his agent's contract within his authority though the principal's name does not appear in the instrument and was not disclosed. Weber v. Collins, 139 Mo. 501; Anchor Warehouse v. Mead, 181 S.W. 1057; Dovard v. Owen, 31 S.W. (2d) 154. (11) Admissions by the agent of appellant are proper where made with respect to a matter within the scope of the agent's employment, and while he was engaged in the business of his principal. Robinson v. Walton, 58 Mo. 380; Peck v. Ritchey, 68 Mo. 114. (12) A principal may recognize his authority ex post facto and make the act his own. Ruggles v. Washington County, 3 Mo. 496; Wade v. Goldsberry, 17 Mo. 270. Ratification is the election of one to accept an act or a contract previously done or entered into in his behalf by another, who at the time had no authority to do the act or make a contract in his behalf. Fleming v. Anderson, 232 S.W. 718. The plain common sense rule applicable to the facts in issue is that where an agent does an act for the use of his principal and the principal enjoys the benefits and fruits of the act, he shall not afterwards be allowed to say that the act was illegal. Ruggles v. Washington County, supra; Watson v. Bigelow, 47 Mo. 413; Davis v. Krum, 12 Mo. App. 270; Greenstreet Brewing Co. v. Dold, 45 Mo. App. 603; Walker v. Hassler, 240 S.W. 257. (13) Ratification may be express or implied. Madison v. Williams, 16 S.W. (2d) 626; St. Mutual Life Ins. Co. v. Walter, 46 S.W. (2d) 1006, 329 Mo. 715. (14) The record proper must show not only that the bill of exceptions was ordered to be filed and made a part of the record in the case, but that it was in fact filed. Miller v. Chicago Great Western Ry. Co., 145 Mo. App. 139. The bill of exceptions does not become a part of the record until made so and actually filed pursuant to the trial court's order. Genekow v. Metropolitan Life Ins. Co., 108 S.W. (2d) 621. (15) Appellant did not avail itself of the privilege given by Rule 26 of this Court by alleging in his abstract that the bill of exceptions was duly filed, and hence can now make no claim under that rule. Craig v. Frisco Railroad, 248 Mo. 270. (16) Improper statements by appellant's witnesses, even if not admissible, were in view of all the facts in the case immaterial, cumulative and no judgment will be reversed for an immaterial error. Mo. Ann. St., sec. 1062, and cases there cited.

SHAIN, P.J.

This case, as we glean from the pleadings, is a suit for damages alleged as arising out of an order or contract for sale and installment of a heating plant in a hotel building owned by plaintiff. Said contract is alleged as made by and with agent of defendant. The plaintiff's petition alleges as follows:

"The defendant agreed to install one heating plant known as the Norge Fine Air Burner in the above described property for the consideration of nine hundred and fifty dollars ($950.00). It was further provided by said contract that defendant would install a suitable plant for plaintiff's building that would heat the same adequately and evenly, and that defendant would replace floors, walls, doors and ceiling in as good condition as they were found before installation, all of which the defendant agreed to do for the sum of nine hundred fifty dollars ($950.00), which sum the plaintiff then and there paid the defendant in consideration of the performance of said contract on the part of the defendant; that under the terms of said contract defendant contracted and agreed to install said plant immediately after the date of said contract, and place the lawn, walls, floors, ceiling and doors in said building in as good condition as they were in before the installation, immediately after the installation of said plant."

The plaintiff further alleged that:

"That the defendant did not install the heating plant that would adequately and evenly heat her hotel as agreed; that the plant so installed by the defendant under said contract did not and will not heat plaintiff's building adequately and evenly, all of which was and is known by the defendant, or should have been known by it before installing the same; that after the installation of the plant so installed, defendant did not replace the lawn, walls, floors, ceilings and doors as agreed, although, after the installation of the plant so installed, the plaintiff at different times and on different...