Opinion
No. 6898.
May 1, 1950.
APPEAL FROM THE CIRCUIT COURT, WEBSTER COUNTY, JAMES P. HAWKINS, J.
John C. Pope, Marshfield, for appellant.
Roy Miller, Marshfield, H. L. Teaff, Springfield, Walker Daniel, Springfield, for respondent.
This is an action for money loaned. The petition was filed January 14th, 1949, in the Circuit Court of Webster County, Missouri. Defendant filed a general denial. The cause was tried before a jury, resulting in a verdict and judgment for the plaintiff in the sum of $900.00. From this judgment defendant appeals to this court.
Plaintiff's petition alleged that on or about the first day of August, 1948, he loaned the defendant $1843.00, which defendant agreed to repay in ten days; that he made numerous demands for the repayment of said money but defendant has failed and refused to repay same.
Appellant, in his brief, under points and authorities, complains of two errors committed by the trial court:
1. "The verdict and judgment are against the law under the evidence, and the evidence is wholly insufficient to support the same.
2. "The Court erred in giving plaintiff's Instruction No. 1 for the reason it did not correctly state the law under the pleadings and evidence."
Appellant was the defendant below and respondent the plaintiff and we will refer to the appellant as defendant and to the respondent as plaintiff in this opinion.
We are first met with a motion, filed in this court, February 28th, 1950, asking the court to dismiss defendant's appeal because he failed to make a proper statement of facts in his statement and brief as required by Supreme Court Rule No. 1.08.
Defendant's brief, containing what he designates, "Statement of the Case", states the date and commencement of the action, allegations of plaintiff's petition upon which he relies for recovery; the date of trial, the amount of the verdict, the date of the filing of the motion for new trial by the defendant, the date the court overruled such motion and the date that defendant filed his notice of appeal.
Supreme Court Rule 1.08 provides:
"(a) * * * The brief for appellant shall contain: (1) A concise statement of the grounds on which the jurisdiction of the review court is invoked; (2) A fair and concise statement of the facts without argument; (3) The points relied on, which shall specify the allegations of error, with citation of authorities thereunder; provided, however, if more than three authorities are cited in support of a point made, the three authorities principally relied on shall be cited first; and (4) An argument.
"(b) The fair and concise statement of the facts shall be in the form of a statement of the facts relevant to the questions presented for determination. Irrelevant facts and testimony and mere formal matters should be included in the statement. If desired, such statement may be followed by a statement of testimony of each witness relevant to the points presented.
"(c) The statement of the facts and the argument shall have specific page references to the transcript on appeal, or, if the transcript is printed, to the printed transcript. * * *"
We held in Re Adoption of Forshey's Minor Children, Mo.App., 225 S.W.2d 816, that where the abstract of the record furnished us by appellant not only fails to set out the full testimony of the witnesses, either in narrative form or by questions and answers, sufficient to advise the court of the import thereof but wholly fails to set out any of the evidence offered in the case upon which the trial court bases its findings, the court of appeals will not review the evidence presented to the trial court, in the absence of showing that the interest of justice requires the court of appeals to pass on the merits of the case notwithstanding such failure. Boyd et al. v. Spickhard et al., Mo.App., 147 S.W.2d 676; Deverell v. Eagle-Picher Lead Co., Mo. App., 137 S.W.2d 473.
Under Supreme Court Rule 1.15, it is provided: "If any appellant in any civil case fails to comply with rules numbered * * * 1.08 * * *, the court, when the cause is called for hearing, will dismiss the appeal or affirm the judgment unless good cause is shown or the interests of justice otherwise require. The court may suspend or modify its rules in a particular case upon a showing that justice so requires."
This case should be dismissed unless plain errors affecting substantial rights of the parties appear.
Supreme Court Rule 3.27 provides: "Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom."
Defendant's first assignment of error, that the judgment is against the law under the evidence, and the evidence is wholly insufficient to support the same, presents to this court the question of the sufficiency of the evidence to support the verdict of the jury.
This case was tried before a jury and a verdict returned in favor of the plaintiff for $900.00. We are bound by the findings of fact by the jury if there is substantial evidence to support the same. In Massa v. Huehnerhoff, Mo.App., 59 S.W.2d 723, 725, the court states the following law: "So here the ultimate and decisive question is whether there was substantial evidence in the case to make it a question for the jury whether defendant signed merely for plaintiff's own accommodation; * * *." Sawyer v. Winterholder, Mo.Sup., 195 S.W.2d 659, 662.
Plaintiff testified that he lived on a farm south of Buffalo in Dallas County, Missouri; that defendant came to his home two or three days before he had a sale, to-wit: July 29th, 1948, and stated that he was broke and needed some money and put up a big story about free range down in Oklahoma; that defendant stated he could make a lot of money by buying cattle and putting them on the range. Plaintiff stated that he was unable to milk cows any longer and that defendant persuaded him to have a sale and lend him the money. Plaintiff stated that defendant said they could go to Oklahoma and get some land or rent some and plaintiff could watch the stock and he agreed he would have a sale and go down there and look it over.
It is admitted by the defendant that he did go to plaintiff's home, stayed there the night before the sale and was there on the day of the sale and helped figure up the proceeds thereof.
Plaintiff gave this testimony:
"Q. And did you loan this defendant any sum of money after that sale? A. I loaned him $1800.00; practically what I got out of the sale.
"Q. In cash? A. Yes, sir.
"Q. Did you take his note for it, or anything? A. No, I just knew the boy, and he was some relation of mine, and I just took his word, and thought he was honest with me, and I took his word for it."
Plaintiff testified that the defendant has never paid him any part of this $1800.00. Plaintiff testified that defendant bought himself some now clothes out of the $1800.00.
Plaintiff testified that he was to be repaid most any time when he needed the money after he got set, or that he figured he would repay him any time he asked him for it after they got down there and got settled. He stated that the country looked too rough and woolly for him and that he didn't have any business buying cattle and turning them back in that brush and he decided not to do it.
Plaintiff testified that he went to Oklahoma some two weeks after he let defendant have the money to try to get defendant to repay him; that he saw defendant at Wagoner and stayed all night at a house with him; that defendant got in his car the next morning and left him there and that was the last time he saw him until the day of trial.
Plaintiff testified, on cross-examination, that defendant borrowed the money to go into the grazing business and he testified that when he came home from Oklahoma he said nothing to the defendant about the repayment of the money. Plaintiff testified that he had nothing to do with going into the liquor business. He stated, "I don't want any part of it."
When asked if he said anything to the defendant about wanting his money back when he left Oklahoma, plaintiff gave this answer: "A. No, I didn't ask for it, because I didn't think he was doing anything, and I just let him go."
Plaintiff stated that he wasn't to get anything out of the business, all he was to get was just his money back; that he was to get nothing until they got to buying some cattle and grazing and stated they probably would have been together on that. He gave this testimony:
"Q. And you gave him $1800.00, and you figured on possibly some of the profits after you got the cattle and got the land? A. Yes, sir."
Plaintiff testified that he rented twenty acres of land in Oklahoma, close to Spavinaw and that he stayed out there about two weeks.
Plaintiff testified that he kept writing to the defendant to come home but could not hear from him.
Plaintiff specifically denied that he gave defendant $250.00 to buy whiskey or to pay expenses. He testified that he went with defendant to Illinois and that the defendant did buy a load of whiskey to transport to Oklahoma but he stated he was just riding with the defendant. He also testified that he tried to get defendant to quit messing with liquor and go to Reno, Nevada, and shoot craps.
Plaintiff testified he had not demanded his money back the first of September and he testified the first time he had seen the defendant was at the trial.
Plaintiff's letter to the defendant, dated September 27, 1948, has the following quotation in it: "I have got to get in touch with you but I don't want to spend money coming down there as I am broke and need some money to pay some bills soon I do want to know what is going on and if we are making any money".
On cross-examination, plaintiff gave the following testimony:
"Q. You were going into the grazing land business? A. Yes, sir.
"Q. Buying cattle, and share the profits? A. Yes, sir."
In behalf of plaintiff, his wife testified that defendant came to their home, was there on the day of the sale and figured up the amount of the sale and that she saw her husband give $1800.00 to the defendant. She corroborated plaintiff about the going to Oklahoma to buy cattle to run on the free range and stated that defendant wanted to borrow the money from plaintiff.
Plaintiff denied that he told Mrs. Coats, at her home in Oklahoma, that he figured defendant owed him $700.00, which was money he had loaned defendant and the profits he was entitled to.
Defendant offered the following testimony: Mrs. Louise Seale, who lived in Pryor, Oklahoma, testified she knew plaintiff; that she saw plaintiff at the home of her mother, Gussie Coats, the last of September or the first of October and that she heard plaintiff tell her mother that he had given defendant a sum of money and, with the profits, he figured defendant owed him $700.00.
The defendant testified he lived in Oklahoma; that he was raised near Marshfield, Missouri. He testified he went to plaintiff's home and plaintiff and his wife told him that they couldn't carry on the farming business and that they would have to get into something else and that he propositioned plaintiff to go into whiskey business with him. Plaintiff agreed and said they would have a sale and plaintiff was to stay down where the whiskey was and the defendant was to do the hauling. Defendant testified that two days after the sale he and plaintiff went to Cairo, Illinois, to get a load of whiskey; that plaintiff gave him $250.00 at Cairo, on the second trip, to buy whiskey. He said that he and plaintiff made four trips to Cairo to get whiskey. He gave this testimony:
"Q. What did he say to you when he gave you the $250.00? A. He gave me the $250.00 to pay expenses, to use it, and his part of the profit would pay his expenses.
"Q. Did you ever get any other sum from him? A. No."
Defendant testified the reason they did not go into the whiskey business was that there was a fellow made a raid down there and plaintiff thought if he ever got caught it would go hard with him because of his record; that plaintiff wanted to go to Reno and gamble. Defendant testified the first time he knew that plaintiff claimed he owed him $1800.00 was when plaintiff filed this suit.
Defendant gave this testimony:
"Q. How much money did you have at that time? A. Well, I had, I don't know, between $900.00 and $1100.00.
"Q. And what was your interest in getting Charley Johnson in the whiskey business? A. So I could handle a little more. * * *.
"Q. And after you got back to Oklahoma, you say Charley went with you to sell this whiskey? A. Yes.
"Q. But he didn't have any interest in it? A. No.
"Q. And he didn't get any of the profits? A. No.
"Q. He had no interest at all? A. He was just riding with me."
Defendant denied that he ever went with plaintiff to look at any grazing land in Oklahoma. Defendant gave this testimony:
"Q. Did you repay him the $250.00? A. No."
Defendant testified that plaintiff never asked him to repay the $250.00.
Defendant testified that on the first trip he and plaintiff made to Cairo, Illinois, he purchased around $900.00 or $1,000.00 worth of whiskey, and he denied that he only had $50.00 at the time Johnson claimed to let him have $1800.00.
Plaintiff was recalled as a witness and testified that when the defendant came to see him about borrowing money he learned the next day that defendant only had $54.00 and spent $50.00 of that for automobile tires. He gave the following testimony:
"Q. And did you ask him if he was going to use any of your money to buy whiskey? A. I knew he wouldn't buy any if he didn't use mine."
Plaintiff testified he was with defendant at the time he was buying whiskey in Cairo; that at that time defendant had his money and was using it to buy whiskey.
We deem it our duty to pass upon the question of whether there was substantial evidence to support the verdict. The interest of justice requires that we pass upon the merits of the case where the record shows that the verdict is against the evidence.
This is an action for money loaned. It is an action in indebitatus assumpsit for the recovery of money loaned to the defendant. Under the law the agreement to repay may be either express or implied. Eichenberg v. Magidson's Estate, Mo.App., 170 S.W.2d 105, 109; Reifeiss v. Barnes, Mo.App., 192 S.W.2d 427, 430.
The issue presented by the pleadings is, first, did plaintiff lend to defendant $1800.00 as stated in his petition? Plaintiff's evidence specifically supports this contention. Plaintiff and his wife state that, on the 30th day of July, at the home of plaintiff, he delivered to the defendant, in cash, $1800.00. To support this evidence, plaintiff stated that defendant came to his home prior to their sale and prior to letting defendant have the $1800.00 and stated that he was broke and that if he had some money to invest in cattle in Oklahoma he could make great profits. Now the testimony on the part of the defendant is a denial that plaintiff loaned him any money whatsoever.
The defendant's theory of the case is that he and plaintiff were going into the whiskey business and that the reason he was taking plaintiff in the business was so he could handle more whiskey. Therefore, the issue was clearly cut as to whether the defendant received this $1800.00 as a loan. The jury returned a verdict for $900.00. This verdict was not responsive to the instructions given by the court or to the evidence. It clearly shows that the jury disbelieved the testimony of plaintiff and disregarded it. There is no doubt, from the evidence, that the jury must have found that plaintiff and the defendant were partners and they just split the difference between them and gave each one $900.00. They certainly did not determine, from the evidence, that there was a loan from plaintiff to the defendant for $1800.00. There were no equities between the parties, as shown by the evidence, by which it could have given a verdict for less than the amount sued for.
Defendant did say that plaintiff let him have $250.00, in Cairo, to buy whiskey with, but plaintiff specifically denied this testimony.
Defendant cites in his brief, Cole v. Armour, 154 Mo. 333, 355, 55 S.W. 476, 482. In this case the action was for a balance due on an oral contract alleged to have been made between the parties. The court held that since the cause was tried on the theory of an express contract, plaintiff was not entitled to recover for money had and received or quantum meruit. There is no question here but that this cause was tried upon the theory of money loaned and it was incumbent upon the jury to follow the law in the case in arriving at their verdict. This they did not do.
We hold that where there is conflicting testimony on the issues being tried, where there is substantial evidence to support the verdict, the court will not weigh the evidence or interfere with the findings of the jury. But here there is no evidence, whatsoever, to support the verdict and the verdict is not responsive to the issues, nor to any testimony in the case.
Under the pleadings in the case and the evidence offered to sustain the same, plaintiff was either entitled to recover $1800.00 or nothing.
Defendant cites Weisels-Gerhardt Real Estate Co. v. Pemberton Inv. Co., 150 Mo.App. 626, 131 S.W. 353, 354. This case is. likewise a suit on express contract for a commission for the sale of property. There was a general denial. The only question presented, was there a contract? Under the evidence plaintiff was entitled to recover all of the amount sued for or nothing.
The court laid down the law in this case that there were not issues raised which would warrant the jury in reckoning with equities involved. The court stated the law thus: "But in all of these cases the issues were such as to warrant the jury in reckoning with the equities involved, and it seems the verdicts were awarded accordingly. There can be no doubt that a different rule prevails in this jurisdiction, at least when the suit is on an express contract for a given amount, and the question presented relates solely to whether or not the contract was made as in the case now in judgment. The Supreme Court has conclusively settled the question, so far as we are concerned, in Cole v. Armour, 154 Mo. 333, 55 S.W. 476. * * * the Supreme Court based its ruling on the ground that the verdict itself conclusively proved the jury did not believe the testimony going to establish the alleged contract. It is said, if the jury had believed the contract was made as asserted by plaintiff, then its verdict necessarily would have been for the full amount; for if the contract existed in fact, and plaintiff fully performed it, he was entitled to recover its full measure."
In the case at bar plaintiff testified he loaned defendant $1800.00; that the amount was, at the time of suit, due and that no part thereof had been repaid. Defendant denies the loan. Now the jury's verdict for just half the amount was not responsive to the pleadings, could not be sustained under the instructions of the court and is totally without evidence to support it.
The same law is declared in Witty v. Saling, 171 Mo.App. 574, 154 S.W. 421.
We hold that it make no difference that plaintiff is not contesting the findings of the jury, which were less than the amount due plaintiff under the evidence. There were no equities in this case to be passed upon by the jury and the verdict itself shows that the jury did not follow the evidence or the instructions of the court. Therefore the judgment must be reversed.
The second point raised by the defendant, in his assignments of error, is that instruction No. 1, given by the court, was erroneous. This allegation of error is not before the court. Defendant admits that he made no exceptions to the giving of the instruction by the trial court.
In Welty v. Niswonger's Estate, Mo.App., 217 S.W.2d 736, 737, the court makes the following statement of law:
"Appellant says that under the provisions of Section 122 of our code, as amended by the Legislature, Laws 1947, p. 227, Mo.R.S.A. § 847.122, it is not necessary to make objections to instructions before they are given.
"That question has recently been determined by the Supreme Court, in an opinion handed down on December 13, 1948, in the case of Holdman v. Thompson, Trustee for St. Louis-San Francisco Ry. Co., a corporation, [358 Mo. 577], 216 S.W.2d 72, 75. In that case the Supreme Court reviews Section 122 of our code, as well as the requirements of prior statutes, and decisions of the court interpreting prior statutes, and holds as follows:
"`Sec. 122 did dispense with the necessity of excepting to adverse rulings. The legislature, by the amendment of 1947, modified the requirement as to objections to instructions. As the section now reads objections to the giving of instructions, if they are to be questioned, are necessary, but the grounds of the objections need not be stated. The rule now is the same as it was before the new civil code was enacted in so far as objections to instructions are concerned, but exceptions to the rulings of the court need not be made. We think this is clear from a reading of Sec. 122. We therefore hold that the defendant is in no position to ask an appellate court to declare an instruction to be erroneous to which no objection was made at any time during the trial.'
"The same question is also determined by this court in * * * the case of Lindsey v. Rogers, Mo.App., 220 S.W.2d 937.
"Rule 321 of the Supreme Court requires that `Objections to instructions shall be made before the case is finally submitted to the jury, and shall be made in the manner provided in Section 122.'"
Defendant calls to our attention, Rule 3.27 of the Supreme Court, which is as follows: "Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom."
We hold that under the issues in this case we cannot say as a matter of law that there is manifest injustice or a miscarriage of justice caused by the instruction complained of. Therefore, we hold that this objection cannot be considered by this court.
Judgment reversed and remanded.
VANDEVENTER, P. J., and BLAIR, J., concur.