Valle v. Picton

• Decision Date: 28 February 1887
• Citation: 3 S.W. 860,91 Mo. 207
• Parties: VALLE v. PICTON.
• Court: Missouri Supreme Court

3 S.W. 860

91 Mo. 207

VALLE v. PICTON.

Supreme Court of Missouri.

February 28, 1887.

1. APPEAL — HARMLESS ERROR — INSTRUCTION.

Rev. St. Mo., § 3775, provides, in substance, that the supreme court shall not reverse the judgment of any court unless it shall believe that error was committed by such court against the appellant or plaintiff in error, materially affecting the merits of the action. Held, under this section, that an erroneous instruction in relation to the consideration of an alleged agreement did not affect the merits of the action, where there was no evidence tending to establish such agreement, and such error was not, therefore, ground for reversal.

2. ATTORNEY AND CLIENT — PRESUMPTION OF AUTHORITY — DISMISSAL.

A motion to dismiss on the ground that the suit has been instituted by an attorney at law "without the knowledge, sanction, or authority of the plaintiff, and against her wishes," cannot be sustained when the presumption arising from the professional obligation of the attorney is opposed only by the affidavit, on mere belief, of the defendant, and when such affidavit fails to state specific facts from which the court itself might be induced to doubt the authority of the attorney.¹

3. CONTINUANCE — DISCRETION OF TRIAL COURT.

The refusal to grant a continuance rests in the discretion of the trial judge, and neglect to take the deposition of an absent witness, who had previously been accessible for many months, is sufficient ground for denying a motion for a continuance in order to procure the testimony of the absentee.

Appeal from St. Louis court of appeals.

McKeighan & Jones, for appellant. E. A. B. Garesche and J. M. Holmes, for respondent.

NORTON, C. J.

This suit was instituted in the circuit court of the city of St. Louis on the eighteenth March, 1882. The petition contains three counts, the first two of which are based on promissory notes of the defendant, and the third is for the recovery of money paid by plaintiff for defendant's use. On the twenty-eighth November, 1882, defendant filed an amended answer, admitting the execution and delivery of each of the notes set up in the petition, and the payment by plaintiff, at defendant's request, of the note mentioned in the third count. The answer, as a defense to the several causes of action sued on, set up that one Zoe Valle Picton, daughter of plaintiff, and formerly wife of the respondent, at the June term, 1881, of the circuit court of St. Louis, instituted a divorce suit against the respondent; that respondent filed an answer to the plaintiff for divorce, and also a cross-bill; that during the pendency of the suit the respondent and appellant entered into an agreement by which the appellant agreed to cancel and surrender up to respondent the notes described, and to release him from all liability on account of the same, and, in addition, to pay to the respondent the sum of $8,500 in cash, upon the execution of a conveyance by respondent to said Zoe Valle Picton, at the termination of said suit, whether the decree rendered in said divorce suit should be in favor of respondent or of his said wife, of all of his marital rights, claims, and demands, of all his rights, claims, and demands of any kind whatsoever in and to the property of said Zoe Valle Picton; that, in consideration of said promises on the part of the appellant, the respondent agreed to execute and deliver said conveyance whenever said suit should be terminated. At the termination of said suit, in accordance with the terms of said agreement, he executed and delivered a conveyance by which he did convey to said Zoe Valle Picton all of the rights, claims, and demands, of every kind and nature, which he had in said property; that the appellant, in pursuance of said agreement, paid to the respondent said sum of $8,500, but through accident, mistake, or oversight failed to cancel and surrender up said notes as required by the terms of said agreement. Replication was filed to this answer, and on the trial of the case in November, 1883, judgment was rendered for plaintiff, which, on defendant's appeal to the St. Louis court of appeals, was reversed, and the cause remanded, on the sole ground of an error committed by the court in giving an instruction of its own motion.² The case is before us on plaintiff's appeal from said judgment of reversal.

While it may be conceded that the said instruction is erroneous in so far as it comes in conflict with the rule that a promise conditioned upon the conveyance to the promisor of a possible interest which he believes the promisee has, but which the latter does not claim, is supported by a sufficient consideration, we are nevertheless of the opinion, owing to a total failure of evidence on the part of defendant to establish so much of his answer as set up the defense that plaintiff agreed to deliver up and cancel the notes sued upon at the termination of the divorce suit, that the judgment of the circuit court should not be disturbed for error committed in giving the instruction condemned by the court of appeals. The evidence offered to sustain the alleged agreement is as follows: The defendant testified in his own behalf that, during the pendency of the divorce suit between himself and wife, he had no conversation with the plaintiff, Mrs. Valle, but that he did have a conversation at his office in May, 1881, with Judge Clover, who was the attorney of his wife in the divorce suit which she had brought against him, in which "Judge Clover spoke to me about his client's friends helping me financially if I would withdraw certain allegations in the pleadings that my attorneys had proceeded to make. I spoke up, and told him that I would prefer to leave these matters to my attorney, Mr. A. J. P. Garesche, who had all these matters in charge; that I would not speak or enter into any agreement without Mr. Garesche's consent, or without his knowledge. He tried to get me to fix an amount, — commit myself to some amount. I told him I did not want to make any money out of it, but simply wanted to pay some obligations I had contracted during the marriage, and to be released from all connection with the family whatever. He then stated that I owed Mrs. Valle a large sum of money, and the agreement would wipe out all that, and that I could have something to start with, and the whole thing would be settled quietly. There was a proposal to make a cash payment. I refused to consider anything of that kind, but referred him to my attorney, and told him my attorney would settle all matters. Judge Clover stated that whatever arrangement was made, that I would be expected to sign a deed releasing all my right, title, and interest in my wife's estate, I told him I referred him, in all these matters, to my attorney, without committing myself to any line of action;" that he had no other conversation with Clover till after the decree of divorce was rendered, when he approached me, and said when I signed the deed the money would be paid. On cross-examination, witness stated that "I referred Judge Clover to my attorney all through the conversation. I told him I was not at liberty to enter into any agreement with him without consulting my attorney; that he had the matter in charge." He further stated: "I refused then and there to name the terms, amount, or anything else. I thought my attorney was the proper person to settle the matter."

Mr. A. J. P. Garesche, who was defendant's...