Northrop v. Diggs , 146 Mo. App. 145 ( 1909 )

GOODE, J.

Three verdicts have been given for plaintiff in this case and there have been two appeals, the first from an order of the court below granting a new trial, which order was affirmed (115 Mo. App. 91), and the second from a judgment for plaintiff, which was reversed because of an error in one of the instructions (128 Mo. App. 217). The facts in the present record are not materially different from what they were before, and are stated fully in the previous opinions. It is necessary to restate them in part in order to make intelligible the points now presented for decision. In the autumn of 1902, defendant owned a leasehold on property on North Main street in the city of St. Louis, which the Terminal Railroad Company would need in order to connect its Eads Bridge tracks with the elevated tracks on the levee. The Missouri Valley Trust Company was endeavoring to acquire for the terminal company, such property as said company needed and among other pieces the property in question. Plaintiff and defendant had their office together at the time, and according to plaintiff’s testimony defendant authorized him to sell the leasehold to the terminal company through the Mississippi Valley Trust Company, and agreed to give plaintiff whatever sum above one thousand dollars he could obtain for it. Plaintiff spoke to Mr. Benoist, one of the officers of the trust company, about selling the leasehold, without, however, giving the name of defendant, as owner, or assuming to act for him. At that time Benoist had not purchased the fee of the property from the owner of the fee, O’Fallon, and said he was not ready to buy the leashold until he did; saying further the price defendant asked ($2000) was much too large. According to plaintiff he had several interviews with Benoist about the matter, but in none of them did he say he was negotiating for defendant. After Benoist acquired the fee from O’Fallon, who told him Diggs was tenant of the property, he, or rather Walsh, another agent of the trust company, by Benoist’s direction, took up the matter of purchasing the leasehold and bought it for two thousand dollars, the price originally named by plaintiff, who thereupon demanded of defendant one thousand dollars on the ground he (plaintiff) was entitled to it for having procured the purchaser, and under the contract by which defendant had agreed to allow him all above one thousand dollars he could obtain for the leasehold. Defendant denied making any contract with plaintiff, and there is a square issue of fact between them about the matter. Plaintiff testified he told defendant prior to the sale of the leasehold of the negotiation with Benoist, so defendant was apprised of the fact that plaintiff was looking forward to a sale to Benoist and was working to' bring it about. Plaintiff further testified he kept defendant informed of the course of the negotiation with Benoist or the Mississippi Valley trust company, as it progressed. Defendant sold for two thousand dollars, but allowed the trust company a commission of fifty dollars. Benoist testified plaintiff was the first person to offer the leasehold to him, always asking two thousand dollars for it, which he thought was too much, but finally concluded to pay. Defendant, besides denying any authority in plaintiff to sell the lease, testified he (defendant) sold it himself to the terminal railroad company through the Mississippi Yalley Trust Company after a long negotiation with Mr. Walsh as the representative of the trust company. The jury found a verdict in plaintiff’s favor for $950, with six per cent interest from May 15, 1903, to the date of the verdict, or $1231.35, and defendant appealed.

1. We overrule the error assigned because of the refusal of the court to direct a verdict for defendant. It is contended plaintiff established no case and this direction should have been given; but as said, the facts in proof were about what they were on the second appeal and we then decided a case for the jury had been made.

2. Error is assigned upon the action of the court in permitting plaintiff’s counsel to state in the hearing of the jury, matters relating to a proposed sale of the lease by defendant to Northrop, and the reception of evidence regarding the proposal, the contention being this statement and evidence were alien to the issues the jury were to try. The attention of the court below was not called, in the motion for new trial, to the alleged improper statement of plaintiff’s counsel and hence the assignment in respect of it will be overruled. [Vawter v. Hultz, 112 Mo. 639; Eppstein v. Railroad, 197 Mo. 720, 738.] As to the assignment of error in respect of evidence received as to those matters, suffice to say if any error was committed in that regard, the court obviated the effect of it by instructing the jury to disregard all of said evidence as it was irrelevant to the issues they Avere to determine. As this was a civil action, the instructions sufficed to correct the error. [Stavinow v. Ins. Co., 43 Mo. App. 513; O’Mellia v. Railroad, 115 Mo. 205; McGinnis v. Loring, 126 Mo. 404.]

3. Error is assigned because the court excluded the following offer of proof:

“By Mr. Gilliam: I offer, to prove by this witness that on or about the 15th day of December, 1902, in his office, Mr. W. P. Diggs, being there in the office, and Mr. Eugene H. Benoist, being there in the .office, and he being there- and then negotiating with Mr. Eugene H. Benoist for the sale of the fee of the premises 306 N. Main street; that he introduced Mr. Diggs to Mr. Benoist and said to him: ‘Mr. Benoist, Mr. Diggs is our tenant at 316 N. Main street; he has been one of our best tenants; I wish you would treat him fairly when you go to buy his lease.’ What Mr. Benoist says — ‘I know Mr. Diggs, and I will treat him fairly in the matter.’ ”

The testimony was offered as tending to prove Benoist first learned from the witness O’Fallon, on December 15, 1902, that Diggs owned the leasehold, which Northrop had attempted to sell, the latter never having divulged the fact. It will be observed the offer of proof did not embrace testimony to prove directly Benoist first learned who owned the leasehold, but only to prove it indirectly by showing Benoist was then first apprised Diggs was the tenant on the property. That matter, as well as everything included in the offer of proof, was established by the testimony of Benoist himself, and also of O’Fallon. The latter said he told Benoist, on the occasion in question, Diggs was the tenant of the property, and Benoist testified he believed O’Fallon then stated Diggs was tenant. Benoist said he had known Diggs before and then learned Diggs owned the lease and instructed Walsh to negotiate with him for it. In fact plaintiff himself admitted he never told Benoist Diggs owned the leasehold. It appears the excluded evidence would have been merely cumulative and was fully covered by the admitted testimony, and if any error was committed in the exclusion, it was harmless. [Crapson v. Wallace, 81 Mo. App. 680.]

4. Another contention is the court deprived defendant of his statutory right to a public trial by compelling counsel to whisper his offer of proof to the court stenographer, instead, of allowing him to speak in a voice audible to bystanders who might sign a bill of exceptions in case the court refused to give a correct bill. The court to prevent the jury from hearing offers-of evidence which perhaps would be incompetent, required counsel to state the offers out of the hearing of the jury. We do not find in the record anything to show the court required defendant’s counsel to whisper the evidence, or declined to permit a bystander to be called within hearing of it, but merely that he was required to make known the offer to the court out of the hearing of the jury. It is not denied the court allowed defendant an accurate bill of exceptions, and we think there is no merit whatever in this assignment of error. [Omaha Coal Co. v. Fay, 38 Neb. 68; Holland v. Williams, 126 Ga. 617.]

5. It is contended plaintiff’s representation to Benoist that plaintiff owned the lease, estops him from claiming a commission for having sold it as defendant’s agent. It should be noted the defense pleaded and invoked is estoppel and not one based on the pernicious tendency of such misstatements — in other words, on public policy. It does not appear he was induced to alter his position for the worse by plaintiff claiming to own the lease and that element of estoppel is absent in the negotiation with Benoist. But suffice to say this point was involved in the second appeal, was adjudicated in holding plaintiff made a case for the jury, and we decline to re-examine it.

6. The instruction given for plaintiff of which complaint is made is a replica of the one approved on the second appeal and was rightly given.

The judgment is affirmed.

All concur.