Viles v. Viles

• Decision Date: 20 November 1916
• Docket Number: No. 1748.,1748.
• Citation: 190 S.W. 41
• Parties: VILES v. VILES.
• Court: Missouri Court of Appeals

190 S.W. 41

VILES v. VILES.

No. 1748.

Springfield Court of Appeals. Missouri.

November 20, 1916.

On Motion for Rehearing, December 21, 1916.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

Action by E. L. Viles against W. W. Viles. From judgment for defendant, plaintiff appeals. Affirmed.

Wright Brothers and Argus Cox, all of Springfield, and T. H. Douglas, of Bolivar, for appellant. Herman Pufahl, of Bolivar, and V. O. Coltrane, of Springfield, for respondent.

ROBERTSON, P. J.

The plaintiff brought this action to recover damages for alleged fraud perpetrated upon him by the defendant, his second cousin, in a transaction in which plaintiff bought shares of stock in the Burkburnett Oil Company, a corporation of Texas of which defendant was president. A jury trial resulted in a verdict for defendant, and plaintiff has appealed. The only errors assigned are as to instructions refused and given.

After plaintiff had purchased the stock, claims to have discovered the fraud and complained to defendant, five additional shares were delivered to and retained by him. The defendant contended at the trial that this constituted a compromise and settlement of the controversy sought to be adjudicated in this case; the plaintiff claimed that the additional stock was accepted by him only for the purpose of adjusting a controversy that had arisen about the amount of money that defendant represented had been paid for leases held by the oil company. The plaintiff requested and was given an instruction upon his theory of the facts. This was followed by one in behalf of defendant referring to the controversy about the alleged misrepresentations made by him, and the jury was told that:

If "in order to settle said controversy, the defendant procured for the plaintiff five additional shares of stock of the company to settle such difference, and the plaintiff accepted such stock and still retains the same, then it is your duty to find the issue for defendant, regardless of the other issues in the case."

The criticism made of this instruction in behalf of plaintiff is that the jury under it should find for defendant, even if plaintiff retained the additional shares of stock for the purpose for which he claims it was accepted. But the instruction requires the jury to find that the defendant procured additional stock to settle the difference involved in this suit, and the requirement that it be found that the plaintiff accepted the stock is so connected therewith that the jury could not have been misled or have concluded therefrom that the acceptance and retention could have referred to anything else than the purpose therein immediately before specified, especially when read in connection with the instruction given in behalf of plaintiff on the same question.

An instruction numbered 10 given in behalf of defendant is complained of in the brief filed in behalf of plaintiff, but a reference to the motion for a new trial discloses that no complaint was made therein of this instruction. No rule is better established than that an appellate court shall not pass on errors of this kind charged against the trial court which that court has not been given an opportunity to correct.

Instructions numbered 3 and 4 requested by the plaintiff were refused by the trial court, and of this action complaint is made. Each of these instructions were upon the whole case and directed the issues to be found for the plaintiff if the facts therein hypothetically submitted were found in favor of plaintiff. These instructions ignored the question of compromise, and for that reason alone the court cannot be convicted of error in refusing to give them.

Three instructions (5, 5A, and 5B) were requested by plaintiff and refused. This is assigned as error. One of these instructions told the jury that in determining the value of the leases held by the oil company that there should not be taken into "consideration any value you may believe from the evidence to be of a purely speculative character." The other two instructions eliminated from the term "value," as used in other instructions, all value that was purely speculative in its character. These instructions, if given, would have been equivalent to a directed verdict for plaintiff. The entire holdings of the oil company consisted of undeveloped property, and the entire value was speculative. While it had a market value it was necessarily based to a large extent on the speculative idea the public had of it. Our Supreme Court in Morgan County Coal Company v. Halderman, 254 Mo. 596, 646, 163 S. W. 828, 843, quotes approvingly as follows:

"No man, however scientific he may be, could certainly state how a mine, with a most flattering outcrop or blowout, will finally turn out. It is...