Tremain v. Dyott

• Decision Date: 08 January 1912
• Citation: Tremain v. Dyott, 142 S.W. 760, 161 Mo. App. 217 (Mo. App. 1912)
• Parties: TREMAIN v. DYOTT.
• Court: Missouri Court of Appeals

142 S.W. 760

161 Mo. App. 217

TREMAIN v.DYOTT.

Springfield Court of Appeals. Missouri.

January 8, 1912.

1. CONTRACTS (§§ 2, 144, 276, 325)—ACTION FOR BREACH—WHAT LAW GOVERNS.

While matters bearing on the execution, interpretation, and validity of a contract are determined by the laws of the place where it is made, and matters connected with its performance are regulated by the law of the place of performance, matters respecting the remedy, as the bringing of suits, rules of procedure governing the trial, admissibility of evidence, and statutes of limitation, depend on the law of the place where suit is brought.

2. TRIAL (§ 418) — WAIVER OF ERROR—DEMURRER TO EVIDENCE.

Defendant waives his demurrer to plaintiff's evidence, where, on it being overruled, he puts in evidence.

3. DEPOSITIONS (§ 110) — EVIDENCE ADMISSIBLE IN PART—OBJECTIONS.

There being any competent evidence in a deposition, a general objection to the incompetency of the evidence therein is bad.

4. TRIAL (§ 76)—RECEPTION OF EVIDENCE— TIME FOR OBJECTION AND EXCEPTION.

Objections and exceptions to the admission of incompetent evidence must be made when the testimony is offered, otherwise objections are waived.

5. APPEAL AND ERROR (§ 877)—REVIEW—EXCEPTIONS OF ADVERSE PARTY.

Exceptions of plaintiff to the ruling of the court, on defendant's objection to all the testimony in a deposition, that part of it was inadmissible and part admissible, cannot avail defendant.

6. APPEAL AND ERROR (§ 242)—REVIEW— ADMISSIONS OF EVIDENCE — RULINGS AND EXCEPTIONS.

Defendant's specific objections to particular parts of a deposition not having been ruled on, he, not having required the court to rule, and saved no exception to its refusal to rule, cannot complain of admission of the evidence.

7. TRIAL (§ 378)—RECEPTION OF EVIDENCE— SAVING EXCEPTIONS—INSTRUCTIONS.

One cannot by instructions save his exceptions to the admission of incompetent evidence; so his failure to except to the overruling in part of his objection to the competency of the evidence in a deposition cannot be helped by the court's giving, at his request, a declaration of law.

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

Action by Clara Tremain against John C. Dyott.Judgment for plaintiff.Defendant appeals.Affirmed.

O. F. Wayland, J. P. Swaim, and M. E. Morrow, for appellant.

NIXON, P. J.

This was an action brought on June 24, 1908, by Clara Tremain, in the Howell county circuit court against John C. Dyott, the surviving joint obligor in a bond executed to plaintiff on January 25, 1904, at Elmira, N. Y.The prayer in the plaintiff's petition was for $1,825 with interest.Upon trial before the court sitting as a jury, plaintiff was awarded judgment for $1,200 and interest in the sum of $210, making a total of $1.410.Defendant has appealed.

The bond sued on in this action is as follows: "Know all men by these presents, that we, Geo. W. Neily and John C. Dyott, both of Elmira, N. Y., are held and firmly bound unto Clara Tremain in the sum of $1,825, lawful money of the United States to be paid to the said Clara Tremain, her executors, administrators or assigns.For which payment to be made we bind ourselves, our heirs, executors and administrators firmly by these presents.Sealed with our seals and dated this 25th day of January, 1904.The condition of the above obligation is such that if the said Clara Tremain, her executors or administrators, shall suffer damage in the sale of certain real property purchased by her of George W. Neily in Shannon county, Missouri, then the above bounden parties will refund and pay to the said Clara Tremain the amount so damaged, provided however, that the said Clara Tremain shall leave the said property in the care and control of said George W. Neily, or his agents, who shall have the exclusive right in selling and disposing of the same, the amount to be received however less the expense and cost of the sale to be turned over to the said Clara Tremain, her executors or administrators, then the obligation herein to be void, otherwise to remain in full force and effect.Geo. W. Neily.John C. Dyott."Then follows a notary's acknowledgment.

The plaintiff copied in her petition an agreement purporting to have been entered into between herself and George W. Neily on January 25, 1904.This written agreement, which was read in evidence without objection, recites that it was entered into on said date in the state of New York, between George W. Neily of Elmira, N. Y., and Clara Tremain of Westfield, Pa., providing that whereas Neily had purchased an undivided one-half interest in certain lands in Shannon county, Mo., comprising some 4,130 acres, and whereas Clara Tremain desired to purchase an undivided one-third interest in said undivided one-half interest, for the sum of $1,825, it was agreed that upon payment of said amount Neily would convey to her such an interest, and that Clara Tremain should become a joint owner in said property, she agreeing to pay her share of the expenses, attorney's fees, taxes, and other disbursements expended by Neily in caring for or selling or retaining said property; and she therein appointed Neily her attorney to sell and dispose of said property at such a figure as he(Neily) should deem advisable, it being understood that the figure would be a fair profit over and above the expenses and purchase price; and it was agreed that, in case a sale was made, she was to receive her share of the increase.This agreement was signed by George W. Neily and Clara Tremain.It is merely an agreement to convey.No deed or other evidence was introduced to show that the conveyance was ever actually made.On the contrary, it appears from defendant's testimony that he and Neily had bought the land in Shannon county over a year before the date of the execution of the bond; that they bought it through Mr. Hogan of the West Plains Bank, the price being $10,644.50; that he and Neily were to each pay half, but before the deed was closed Neily became involved in labor troubles in New York which tied up his accounts; that he(Dyott) paid the entire amount and took the title in his name; that Neily never had any record title; that Neily never put any money into it until a short time before it was sold when he put in $2,344.25; that the land was sold with Neily's consent for $13,000; and that he(Dyott) made the deeds.The time of the sale is not fixed, but Neily died on October 25, 1905, and it was before that time.Defendant also testified that he had paid to George W. Neily as agent of Clara Tremain the full amount of the bond, stating that after the sale was made he gave Neily one check for $500 and another for $100.The deposition of Neily's banker was read, wherein it was shown that such checks were deposited by Neily to his credit.

Evidence was introduced by the plaintiff showing the law of the state of New York(where the bond sued on was executed) concerning the liability of surviving joint debtors, to meet a count in defendant's answer charging defect of parties, in that the personal representatives of George W. Neily were not joined as partiesdefendant.The rule is that matters bearing upon the execution, interpretation, and validity of a contract are to be determined by the law of the place where it is made.Hartmann v. RailwayCo., 39 Mo. App., loc. cit. 93;Johnston v. Gawtry, 83 Mo. 339;Sallee v. Chandler, 26 Mo. 124;Phœnix Mut. L. Ins. Co. v. Simons, 52 Mo. App. 357;Kerwin...