Walser v. Wear

• Decision Date: 23 November 1897
• Parties: Walser, Plaintiff in Error, v. Wear
• Court: Missouri Supreme Court

42 S.W. 928

141 Mo. 443

Walser, Plaintiff in Error, v. Wear

Supreme Court of Missouri, Second Division

November 23, 1897

Error to Barton Circuit Court. -- Hon. D. P. Stratton, Judge.

Reversed and remanded.

Thurman & Wray and G. H. Walser for plaintiff in error.

(1) The motion to strike out that portion of defendant's answer changing his liability as a guarantor, as fixed by the written agreement, to a principal, on the ground that such was the understanding at the time the guaranty was executed should have been sustained. 1 Greenl. Ev., sec. 277; James v. Clough, 25 Mo.App. 154; Koehring v Muemminghoff, 61 Mo. 407; Fruin v. Railroad, 89 Mo. 404; State ex rel. v. Hoshaw, 98 Mo. 360. (2) Besides, defendant is estopped from asserting that he was a principal in the lease. Having been so charged in the original petition, at his own instance he was discharged on demurrer from answering in any other capacity than as a guarantor. 1 Her. Estop., sec. 51, p. 44; sec. 273, p. 321; sec. 472, p. 569, 570; 2 Her. Estop., sec. 817, 818; Austin v. Loring, 63 Mo. 23; Garton v Botts, 73 Mo. 276; 1 Greenl. Ev. [14 Ed.], secs. 27 and 207; Con. Mutual Life Ins. Co. v. Smith, 117 Mo. 279. (3) The right of subrogation is purely equitable, and the trial would have been to a chancellor instead of a jury. (4) The abandoned pleadings of defendant, offered in evidence by plaintiff, were admissible in evidence as tending to show that all this defense about fraud was an afterthought. Dowzelot v. Rawling, 58 Mo. 77; Anderson v. McPike, 78 Mo. 319; Schad v. Sharp, 95 Mo. 573. (5) The court should have sustained a demurrer to the evidence on the trial of the fourth defense and first counterclaim. There was no evidence to sustain either, assuming defendant's theory is correct, that he could ignore the written agreement and answer as the real party in interest. 1 Story, sec. 202; Bryan v. Hitchcock, 43 Mo. 527; Clark v. Edgar, 12 Mo.App. 352; Dunn v. White, 63 Mo. 181; Langdon v. Green, 49 Mo. 363; Key v. Jennings, 66 Mo. 369; Hitchcock v. Baughan, 36 Mo.App. 221; Warren v. Ritchie, 128 Mo. 311; Shelby Co. v. Bragg, 135 Mo. 291. (6) The defendant, after having enjoyed the fruits of the lease for over nine months by operating the mine during the profitable coal season, with full knowledge of the "thickness of the vein and the quality of the coal," can not abandon the contract on the ground of false representations as to such "thickness of the vein and quality of the coal." Such conduct on his part creates the presumption in law that he elected to stand by the contract and is now estopped from denying its validity. Chitty on Cont., 408, 409, 680; Estes v. Reynolds, 75 Mo. 565; Mason v. Bovet, 1 Denio, 74; Butts v. Phelps, 90 Mo. 670; Am. Ins. Co. v. Kuhlman, 6 Mo.App. 525; Reel v. Ewing, 71 Mo. 29; Burgess v. Railroad, 99 Mo. 508; Kent v. Quicksilver Mining Co., 79 N.Y. 184; Her. Estop., sec. 1063, p. 1195; Hart v. Handlin, 43 Mo. 171; Jarrett v. Morton, 44 Mo. 275; Carson v. Smith, 133 Mo. 612. (7) The action of the court in striking out the last three clauses in plaintiff's reply to defendant's second counterclaim can not be sustained on any theory of law or right. By this ruling of the court appellant was denied even his royalty while the lessee was enjoying the profits of his mine -- was required to pay for tools of lessee under a stipulation in this lease, when he was denied the right to recover pay for his tools used and destroyed by the lessee, under a like provision in this same lease. Estes v. Reynolds, 75 Mo. 565; Her. Estop., sec. 1063; Mortland v. Holton, 44 Mo. 62. (8) On the trial the court ought to have sustained the objection of defendant to the introduction of any evidence on the second counterclaim, for the reason that he seeks to recover on the lease which he claims is void and not binding on him. He can not deny the obligations of the lease and at the same time reap benefits under it. Estes v. Reynolds, 75 Mo. 565; Jarrett v. Morton, 44 Mo. 275; Hart v. Handlin, 43 Mo. 171.

H. C. Timmonds and J. B. Larimer for defendant in error.

(1) Defendant's liabilities and rights are not fixed as those of a guarantor, and he can now claim to be a principal in the contract sued on. The general rule cited by counsel does not apply to collateral verbal or written agreements, connected with simple contracts. Ferris v. Thaw, 72 Mo. 446; Lumber Co. v. Warner, 93 Mo. 374; Nichols & Co. v. Kern, 32 Mo.App. 1; Oriental v. Overend, 7 Ch. App. Cases, 142; 1 Parsons on Con., side pages 55, 62, 63 and 64, and notes; Liebke v. Methudy, 14 Mo.App. 71; Bank v. Pecks, 28 Vt. 200. (2) The authorities now agree that even as to commercial paper, parol evidence is admissible for the purpose of showing that one of the makers was principal and the other surety, and that such fact was known to the creditor. Garrett v. Ferguson, 9 Mo. 125; Bank v. Wright, 53 Mo. 153; Carpenter v. Smith, 9 Met. 511; Harris v. Brooks, 21 Pick. 195; Ward v. Stout, 32 Ill. 399. (3) Plaintiff and defendant, in their dealings with each other, all the way through, gave this practical construction to the contract, and the court will not now permit either of them to claim otherwise. Ferris v. Thaw, 72 Mo. 446; Bank v. Pecks, 28 Vt. 200; Brandt on Suretyship and Guaranty, sec. 80; Lyles v. Lesher, 7 West. Rep. (Ind.) 51; Railroad v. Johnson, 6 H. L. C. 798. (4) The defendant pleaded and the jury found that the contract sued on was procured by fraud. Brandt on Suretyship and Guaranty, sec. 352. (5) The plaintiff himself having voluntarily testified that defendant, and not Gwin, was the real contracting party, known to him and relied on by him as such at the time and dealt with continuously in that capacity, can not now be heard to say that such are not the facts, nor escape the consequences of his own acts. Railroad v. Johnson, 6 H. L. C. 798; 3 Am. and Eng. Ency. of Law, 893, note 1; Bassett v. Glover, 31 Mo.App. 150. (6) There is no merit in the claim that defendant was estopped to plead that he was the real party in interest and the principal, by reason of the fact that he demurred to the first petition filed by plaintiff joining him with Gwin in the same count. The court merely held that the petition on its face was bad. (7) Defendant's books were shown to be correctly kept. They would have been admissible in evidence. Robinson v. Smith, 111 Mo. 207; Fulkerson v. Long, 63 Mo.App. 268. Plaintiff did not object to the oral testimony of the witness on the ground that it was secondary or not the best evidence, but on the ground that "the book and entries therein are incompetent." (8) A judgment will not be reversed because of the admission of improper evidence, where the facts sought to be proved thereby are satisfactorily established by other competent testimony. Lane v. Lane, 113 Mo. 504; Seligman v. Rogers, 113 Mo. 642. (9) Plaintiff's tenth and last complaint is that defendant was allowed on the second trial for the tools he placed in the mine under this fraudulent contract, and which were appropriated and converted by plaintiff as alleged in defendant's second counterclaim.

Gantt, P. J., and Sherwood, J., concur.

OPINION

Upon this branch of the case the jury found in favor of the defendant. Their verdict received the sanction of the trial court who heard the evidence. And we are not prepared to say that there was no substantial evidence to support that finding, and it is only in such circumstances that this court will interfere. It is true that there was evidence that defendant examined the mine in person, and had others to do so for him with a view of ascertaining the thickness of the strata of coal, quantity, and all about the mine, which tended strongly to show that he was not induced to have the lease executed by reason of any representations of the plaintiff, but rather that he relied upon his own investigation and...