Vrooman v. Hill

• Decision Date: 14 February 1941
• Docket Number: 37169
• Citation: 147 S.W.2d 602,347 Mo. 341
• Parties: Claude E. Vrooman v. Roland Hill, Appellant
• Court: Missouri Supreme Court

147 S.W.2d 602

347 Mo. 341

Claude E. Vrooman v. Roland Hill, Appellant

No. 37169

Supreme Court of Missouri

February 14, 1941

Appeal from Circuit Court of City of St. Louis; Hon. Frank C O'Malley, Judge.

Affirmed.

Alphonso Howe and Anderson, Gilbert, Wolfort, Allen & Bierman for appellant.

(1) The refusal of the court to give the instruction at the request of defendant submitting defendant's theory of the agreement was erroneous. Wilson v. Thompson, 133 S.W.2d 334; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 570; Johnston v. Ramming, 340 Mo. 317, 100 S.W.2d 466; State ex rel. Dunklin County v McKay, 325 Mo. 1098, 30 S.W.2d 83; Dittmeier Real Estate Co. v. Southern Surety Co., 289 S.W. 886; Root v. Railroad Co., 237 Mo. 652, 141 S.W. 610; Sells v. Fireside Life Assn., 66 S.W.2d 956; Da Pron v. Neu, 43 S.W.2d 915; Alexander v. Wabash Ry Co., 38 S.W.2d 549; Jordan v. Daniels, 224 Mo.App. 749, 27 S.W.2d 1057; Smith v. Southern, 210 Mo.App. 293, 236 S.W. 413; Jennings v. Cooper, 230 S.W. 328; Harris v. Terminal Railroad Assn., 203 Mo.App. 324, 218 S.W. 688; Miller v. Kansas City Ry. Co., 247 S.W. 232; Webb v. Byrd, 203 Mo.App. 602, 219 S.W. 683; Stephens v. Eldorado Springs, 185 Mo.App. 472, 171 S.W. 657; Cahn v. Reid, 18 Mo.App. 131. Under a general denial, proof of the different contract was proper. Bowman v. Rahmoeller, 331 Mo. 868, 55 S.W.2d 458. (2) The submission of the case to the jury on plaintiff's instruction purporting to cover the whole case, which simply submitted plaintiff's theory, with no instruction covering defendant's theory, was erroneous. State ex rel. Jenkins v. Trimble, 291 Mo. 235, 236 S.W. 651; Sells v. Fireside Life Assn., 66 S.W.2d 956; Jones Store Co. v. Kelly, 225 Mo.App. 833, 36 S.W.2d 683; Smith v. Southern, 210 Mo.App. 293, 236 S.W. 413.

McDonald, Bartlett & Muldoon, Jesse McDonald, Daniel Bartlett and Thomas F. Muldoon for respondent.

(1) Defendant's refused instruction did more than submit defendant's "Theory of the Evidence." It would have directed the jury to find for defendant upon facts which could not constitute a complete defense. The jury might have believed that plaintiff had at one time or another agreed to assist for nothing, yet if they also found (as they did) that defendant agreed to pay $ 10,000 for certain services which were rendered (according to the jury's verdict), plaintiff was still entitled to recover. Instructions directing a verdict for defendant must be based on evidence which constitutes a complete defense. Under all the pleadings and the evidence, and particularly the evidence offered by defendant, it would have been unfair and prejudicial error to have charged the jury that if plaintiff had agreed to work for no charge he could not recover, regardless of whether the jury believed defendant had agreed to pay him. (2) The refused instruction singled out a mere evidentiary fact which was not alone determinative or controlling of the issues. Yet it would have directed a verdict upon the finding of such evidentiary fact. Houts, Mo. Pleading & Practice, sec. 352; Perkins v. Terminal Railroad Assn., 102 S.W.2d 921; Boehm v. Acacia Mut. Life Ins. Co., 119 S.W.2d 980. (3) That issuable facts were fully covered by the instructions given. Defendant's refused instruction, at best, merely negatived plaintiff's instruction given. Defendant was not entitled as a matter of right to have even a proper instruction given which is merely in negative form. Houts, Mo. Pleading & Practice, sec. 399; Reid's Branson's Instructions to Juries (3 Ed.), 1936, secs. 50, 52; Krelitz v. Calcaterra, 33 S.W.2d 909; McQuillin, Inst. to Juries, sec. 71; State ex rel. v. Horton, 161 Mo. 673; Acme Harvesting Mach. Co. v. Gasperson, 168 Mo.App. 558, 153 S.W. 1069; Anderson v. Davis, 284 S.W. 439, 314 Mo. 515; McCaffery v. St. L. & M. Ry. Co., 192 Mo. 144, 90 S.W. 144; Humphrey v. Chicago, M. & St. P. Ry. Co., 83 S.W.2d 586; Best v. A. T. & S. F. Ry. Co., 76 S.W.2d 442; Kirkpatrick v. Amer. Creosoting Co., 37 S.W.2d 996; Berry v. St. L.-S. F. Ry. Co., 26 S.W.2d 988; Heman v. Mo. Pac. Ry. Co., 64 S.W.2d 617, 70 S.W.2d 869; McNeil v. Fidelity & Casualty Co. of N. Y., 82 S.W.2d 582; Benton v. St. Louis, 248 Mo. 98, 154 S.W. 473. (4) Since the issue as to whether defendant had agreed to pay plaintiff was submitted by one instruction offered by plaintiff and two instructions offered by defendant, and the jury found that defendant had so agreed, defendant could not be prejudiced by the trial court's refusal of the third instruction offered. Neal v. Curtis Mfg. Co., 41 S.W.2d 543, 328 Mo. 389; State ex rel. St. L. P. S. Co. v. Hard, 63 S.W.2d 15, 333 Mo. 845; R. S. 1929, sec. 1062; Houts, Mo. Pleading & Practice, sec. 540; Federal Coal & Coke Co. v. K. C. So. Ry. Co., 215 S.W. 914.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Action for services under an alleged oral contract. Verdict and judgment went for plaintiff for $ 10,000 and defendant appealed.

Plaintiff, respondent here, alleged that defendant owned an unimproved lot at the southeast corner of Euclid and Maryland avenues, St. Louis; that there were use restrictions and also restrictions as to size of building which might be erected on the lot; that defendant employed plaintiff to assist in getting restrictions removed and to advise and represent defendant in connection with a building to be erected on the lot; to engage an architect and supervise the preparation of plans and specifications for the building. It is alleged that plaintiff rendered all the services contemplated by the contract and that defendant agreed to pay him $ 10,000 therefor, but has failed and refused to do so. The answer was a general denial.

Defendant assigns error on the giving of plaintiff's only instruction and on the refusal of an instruction offered by defendant. Of plaintiff's instruction defendant says: "The submission of the case to the jury on plaintiff's instruction purporting to cover the whole case, which simply submitted plaintiff's theory, with no instruction covering defendant's theory, was erroneous." So it appears that the real question here is the refusal of defendant's instruction.

Plaintiff's instruction directed a verdict of $ 10,000 for him if the jury found "that on or about May 1, 1923, the plaintiff Vrooman was employed by the defendant Hill to act as general real estate agent for defendant in connection with a proposed building on defendant's lot described in the evidence; that it was agreed between plaintiff and defendant that as such agent plaintiff was to advise defendant with respect to the height and size of such building, the building line to be observed, the number and size and arrangement of the rooms, the character and size of the store spaces, the general design and style and appearance of the proposed building, and the character of the use for which the building was to be designed; that it was further agreed that under said employment plaintiff was to assist defendant in securing the consent of the owners of a majority of the frontage on the south side of Maryland avenue in the block between Euclid and Taylor avenues to a modification of the building and use restrictions so as to permit the erection and use for business of such building; and if you further find and believe that plaintiff under said employment did advise defendant with respect to the height and size of such building, the building line to be observed, the size and number and arrangement of the rooms, the character and size of the store spaces, the general design and style and appearance of the proposed building, and of the character of the use for which the building was to be designed; that plaintiff also engaged an architect and supervised the work of the preparation of sketches, plans and specifications, and submitted them to defendant; that plaintiff also assisted defendant in preparing necessary forms of consent and in securing the consent of the owners of a majority of the frontage in said block to the modification of the restrictions described in evidence; and if you further find and believe that while plaintiff was so engaged under said employment defendant orally agreed to pay plaintiff the sum of ten thousand dollars ($ 10,000.00) for his services."

The instructions were not numbered, but for convenience we shall refer to defendant's instructions as Nos. 1, 2, 3, and 4. Numbers 1 and 2 were given, and 3 and 4 refused. No complaint is made on the refusal of 3. Defendant's refused instruction 4 follows: "The court instructs the jury that if you find and believe from the evidence that plaintiff and defendant entered into an oral agreement wherein plaintiff was to advise and assist defendant concerning the proposed building and concerning the removal of restrictions concerning the lot on which the building was proposed to be erected, and that plaintiff agreed to so advise and assist defendant for no charge, but as a matter of friendship, if you so find, then your verdict will be for defendant."

Defendant's given instructions 1 and 2 were as follows: "(1) The court instructs the jury that before you can find a verdict in favor of the plaintiff in this case you must find and believe from the evidence that the defendant agreed to pay plaintiff the sum of $ 10,000.00, and if you find and believe from the evidence that defendant did not agree to pay plaintiff the sum of $ 10,000.00, then your verdict must be in favor of defendant even though you find and believe from the evidence that plaintiff did work, rendered advice and rendered service to defendant, and even though you further find that such work, advice and service was of value to defendant.

"(2) The court instructs the jury that the burden of proof is on the plaintiff to prove to your...