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wted the deed was executed, and accordingly the statute (Rev. St. 1899, § 655), and the ci sed that the contract, as 80 modified, | point is not, therefore, open for review iu required them to account to the plaintiff for this court. Fisher Real Estate Co. v. Staed $30 per acre, less $500 commission, and Realty Co., 159 Mo. 562, 62 S. W. 443. caimed that whatever they received in ex- 3. The defendants' next contention is that

s of that amount belonged to them, and the trial court erred in overruling the de Consequently they were under no obligation murrers to the evidence. There was subto potify or inform the plaintiff that the sale stantial evidence adduced by the plaintiff was for $25 per acre. Each party insists tending to establish the allegations of the that the other was guilty of making many petition and to support the plaintiff's theory coficting, contradictory, and false state of the case. This therefore is not a case of Lents in their respective testimony, and the total failure of proof, such as is defined in case was argued in this court as if such mat- Chitty v. Railroad, 148 Mo. 64, 49 S. W. 868. ters were open to review here. It is un- There was no error in the ruling of the court Dosary to reproduce in more detail the in this regard. testimony adduced upon the trial. What is 4. The fourth error assigned is the action bereinbefore said is sufficient to show the of the trial court in permitting the plaintiff theories upon which the parties tried the to cross-examine the defendants as to the ase in the court below, and to indicate that value of the land and as to the meaning of ttere was substantial testimony to support the letters written by the defendants to the the theory of each party. On behalf of the plaintiff. The trial court admitted the eviplaintiff the court gave 11 instructions, and dence as to the value of the land as bearing on behalf of the defendants the court gave upon the wrongful conduct of the defendant als 11 instructions. The defendants also in representing to the plaintiff that they ated 10 other instructions, wbich the court could not sell the land for more than $20 an mfused. The instructions given and refused acre, and thereby inducing him to agree to took a wide range, and, so far as is neces- a modification to that extent of the consary, those specifically complained of will be tract. No such issue was properly in the bereafter referred to. At the close of the case, but at the request of the defendants plaintiff's case, and again at the close of the the court instructed the jury that, if they bole case, the defendants demurred to the believed that the plaintiff consented to a evidence. The court overruled the demurrers, modification of the contract as claimed by and the defendants excepted.

the defendants, their verdict should be for 1. The first error assigned is that the the defendants. Whatever barm was done petition stated no cause of action, in this: to the defendants by the admission of the that it does not allege that the defendants evidence complained of was neutralized by Tere granted authority to collect the pur- the instruction asked by the defendants. As chase money. This is an action for money to the cross-examination of the defendants tad and received, and not an action upon a concerning the letters written by them to the special contract. The gravamen of the peti- | plaintiff, it may also be properly said that tion is that tbe defendants received $4,907.10 there was no such issue in the case, but it for the use of the plaintiff, and retained the is inconceivable bow the defendants were sa me, and refused to pay it to the plaintiff, prejudiced thereby. On the contrary, they of to account to him therefor. “The law is were thus afforded an opportunity of exteat when a person who has received money plaining the meaning of their letters. The for the use of another neglects or refuses plaintiff would have had a right to object to pay it over to his cestui que trust the to the defendants adding anything to their person entitled thereto may maintain an ac- letters explanatory thereof, but how the tion against him for money had and receiv- defendants could be injuriously affected by

It is of no importance how the the plaintiff permitting them or requiring Dopey came into his bands if the plaintiff them to explain them does not manifest itis legally entitled thereto. The beneficiaries self. are lezally entitled to recover it of the re- 5. The next error assigned is that no decerer by an action for money bad and re- mand, before the action was instituted, was mited." Clark v. Bank, 57 Mo. App., loc. cit. shown. Section 1575, Rev. St. 1899, provides 25. One who receives money for the use that: “It shall not hereafter be available to of another, even without any prior authority a party as an objection that no demand for to so receive it, is liable to the person to the subject matter of the suit was made bose use it was received; and it is no de- prior to its institution, unless it is expressly ferse that the receiver had no previous au- set up by way of defense in the answer or tbority.

replication, and is also accompanied with a 2. Tbe second contention of the defendants tender of the amount that is due; in which 13 that the petition alleges a written contract, case, if the plaintiff will further prosecute wbereas the proof showed a verbal contract. his suit, and shall not recover a greater sum If there was any merit in this contention, than is tendered, he shall pay all costs. This te defendants have not put themselves in a provision shall be applicable as well to acposition to insist upon it in this court. They tions for property as for money. When Hled no affidavit such as is required under property is tendered, the damages for its

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detention, if any, shall also be tendered.” directly discussed, but the correctness of the The defendants in this case set up no such instruction in this regard was tacitly conspecial defense, and make no tender, but, on ceded by counsel, and passed unchallenged the contrary, filed a general denial.

by the court. In view of the contentions 6. Plaintiff's first instruction is claimed to of each party hereto with respect to the tesbe erroneous on the ground that it directed timony of the other party, it was proper for the jury, in determining the weight and credi- the court to give the instruction complained bility to be given to the testimony of any wit- of. The jury was a jury of the vicinage, and ness, they should take in consideration the had the parties before them, and could see character of the witness, and because there the witnesses, and also heard, from the acwas no evidence adduced in the case affecting counts of the witnesses concerning themthe character or reputation of any witness selves, of what manner of men the witnesswho testified in the case. There is a vast dif- es were, could observe their individuality, ference between the character of a witness intellectuality, and conduct, could read the and the reputation of a witness. Webster's character of the witnesses from their apInternational Dictionary defines "character" pearance, bearing, and manner. There was as follows: “3. The peculiar quality or sum no error in the instruction. of qualities by which a person or thing is dis- 7. The plaintiff's second instruction is tinguished from others; the stamp impressed charged to be erroneous. This instruction by nature, education and habit; that which a told the jury that the plaintiff was not bound person or thing really is; nature; disposic by the insertion of July 15, 1898, unless tion. 4. Strength of mind; resolution; in- he ordered, directed, or consented thereto; dependence; individuality; as, he has and that, if such modification of the orig. great deal of character. 5. Moral quality; inal contract was made by the defendants the principles and motives that control the without the plaintiff's consent, it rendered life; as, a man of character; his character the whole contract void. In Kelly v. Thuey, saves him from suspicion. 6. Quality, po- 143 Mo., loc. cit. 434, 45 S. W. 302, this sition, rank or capacity; quality of conduct court said: “It is the firmly rooted doctrine with respect to a certain office or duty; as, in of this court, and has been ever since the the miserable character of a slave; in his ruling made in Haskell v. Champion, 30 Mo. character as a magistrate; her character as a 136, that it is not permitted to a payee or daughter.” The same author defines "repu. obligee to make a change in a paper which tation" as follows: "1. The estimation in he holds, and then assert, wben caught, which one is held; character in public opinion; that he meant no harm by it, and that it is the character attributed to a person, thing or immaterial. Hitherto we have tolerated no action; repute. (Law) The character imput- alteration in a contract; and we have aled to a person in the community in which he ways regarded, and still regard, any change lives. It is admissible evidence when he puts on the face of the paper as a nullifying alhis character in issue, or when such reputa- teration. By this holding we intend to make tion is otherwise part of the issue of a case." the payees or obligees of money-bearing or "Synonyms given are "credit; repute; re- title-bearing obligations honest, whether that gard; estimation; esteem; honor; fame." inclination accords in their natural inclinaSpeaking of character and reputation, the tions or not." There is no room for controsame author, quoting from Abbot, says: “It versy. that the insertion of July 15, 1898, in would be well if character and reputation the original contract, was a material alterwere used distinctly. In truth, character is ation of the contract. That authorized the what a person is; reputation is what he is sale of the land at a price different from that supposed to be. Character is in himself; | fixed in the original contract, and materially reputation is in the minds of others. Char- increased the amount of commission and acter is injured by temptation and by wrong. profits the defendants might make out of the doing; reputation by slander and libels. sale of the land. The positions and theories Character endures throughout defamation in of the parties in this case illumine the rad. every form, but perishes when there is a ical differences between the original contract voluntary transgression; reputation may and the altered one. Those differences were last through numerous transgressions, but the very matters in issue before the jury. be destroyed by a single, and even an un- The instruction complained of properly told founded, accusation or aspersion." Instruc- the jury that, unless the plaintiff agreed or tions embodying the point here involved consented to the alteration, that act of alwere given in the following cases: State v. teration nullified the whole contract. The Gee, 85 Mo. 647; State v. Brooks, 92 Mo., converse of that instruction is contained in loc. cit. 557, 5 S. W. 257, 330; State v. Herrod, the defendants' third, fourth, sixth, eighth, 102 Mo., loc. cit. 598, 15 S. W. 373; State ninth, and eleventh instructions, all of which v. Hilsabeck, 132 Mo., loc. cit. 358, 34 S. W. were given for the defendants by the court. 38; and State V. Hudspeth, 159 Mo., loc. 8. The plaintiff's third instruction is ascit, 200, 60 S. W. 136. In none of these cases, signed as error. That instruction proceeds however, was there any point made as to on the same lines as the second instruction, the jury taking into consideration the char- above discussed, and is especially complained acter of the witnesses, nor was the question of because it tells the jury that the plain

tiff is not bound by the alteration of July 15. 1898, unless he was present in the office of the defendants at the time the alteration Tas made; and it is argued very properly *Eat the real question is whether he consented to the alteration, and not whether he did so in the office of the defendants or else there. Inasmuch as the defendants' whole contention is that the agreement to alter was entered into at the defendants' office, and there is no evidence tending to prove that such alteration was proposed, made, or agreed to at any other place, it is difficult to see bor the jury could have been misled by miting the agreement or consent of the plaintiff to the alteration to matters that ocCarted in the defendants' office. The critieism of the instruction does not commend itself to the impartial mind, nor is it tenable in the circumstances of this case.

9. Plaintiff's fifth instruction is complained of. The gist of that instruction is that, though the plaintiff gave the defendants authority to sell the land at $20 an acre, still such authority did not excuse the defend2pts from selling for the best price obtainable and accounting to the plaintiff for the full purchase price, less such compensation as may have been agreed upon. The criticisa of this instruction is that it makes the agent exceed the instructions of his principal, and makes him liable if he does not do 50. The criticism is not tenable. The price lied for the sale of the land was the mininon price at which the plaintiff was willing to sell. The obligation of the defendants wder their contract necessarily was that thes would sell at the best price obtainable; and, whatever may have been the true arrangement, whether original or amended, between the parties, the plaintiff was entitled to know the truth concerning the sale, and, if the plaintiff's version is true—as the jury has found that it was—the plaintiff was entitled to receive the full amount for which the land sold, less the commission agreed to be paid to the defendants.

10. The plaintiff's seventh instruction is assigned as error. That instruction told the jury that, even if they found that the plaintir signed the original contract, yet if they believed that he never read it, and that in reading it to him the defendants fraudulent15 deceived the plaintiff as to its true contents by misstating the price as to which the contract recited that the land should be sold, then the contract is not binding on the plaintiff. The objection urged to the instruction is that this is not an action for the cancellatoa of a contract on the ground that it was procured by fraud, and that, even if it had been procured by fraud, a court of law his Do power to set it aside.. It is true this is pot an action to cancel the contract, nor is it an action on the contract. The contract Tas only a portion of the evidence in the ase, and it was proper for the court to tell the jury whether or not it was binding up

on the plaintiff. The defendants rely upon the contract, as they claim it had been amended, as the corner stone of their defense. The plaintiff's position was that the contract was not binding upon him, because he had been fraudulently induced to enter into it by the act of the defendants in not correctly reading it to him, and also that the original contract had been nullified by the unauthorized alteration thereof.

11. The plaintiff's eighth instruction is claimed to be erroneous on the ground that there is no evidence to support it; that is, that there is no testimony in the case fixing the defendants' commission at 5 per cent. on the first $1,000 and 21/2 per cent on the remainder of the purchase price. This must be a misapprehension of counsel, for the original contract specified that the commission of the defendants should be the sums named. This was some evidence bearing upon that question.

12. The plaintiff's eleventh instruction is assigned as error. That instruction tells the jury that it is admitted that the defendants received from Scroggins $24,320, and that the plaintiff admits that the defendants are entitled to retain out of that sum a commission of 5 per cent. on the first $1,000 and 21/2 per cent. on the remainder; and that, if the jury should find for the plaintiff, they should deduct the commission from the amount received, and should also deduct $19,019.40, which the plaintiff admitted he had received from the defendants on account of the sale, and the remainder would be the amount due the plaintiff, unless the jury believed that the plaintiff had agreed to give the defendants all they could sell the place for in excess of $20 per acre. The criticism of this instruction is that there was no admission, either in the pleadings or evidence, that defendants had received $24,320. The petition charges that the defendants had received $24,645.50—that is, $25 an acre--for the land, and the evidence shows that the land was sold for $25 an acre, and that defendants received $15,000 on the 14th of October, 1898, and that subsequently the purchaser turned over to the plaintiff a check or draft for $9,320, and that the plaintiff turned the same over to the defendants, and that the defendants gave the plaintiff their check for said amount. $15,000 plus $9,320 aggregates $24,320, which is the sum stated in the instruction complained of. The discrepancy between that sum and $24,645.50, the true sum due, is nowhere explained in the evidence; but the defendants were not prejudiced thereby. The fact that Scroggins turned over to the plaintiff the check for $9,320, and that the plaintiff turned the same over to the defendants, and they gave him their check therefor, does not, as the defendants contend, render the instruction erroneous because of the statement therein contained that the defendants received from Scroggins $24,320. The in

struction fairly presented the matter to the dence in their favor is so strong as to show jury.

that the verdict is the result of passion, 13. In his final argument to the jury plain- prejudice, and partiality of the jury. It is tiff's counsel commented upon the fact that not the practice of this court to weigh the the original contract, which was before the evidence in law cases. If there is substanjury, appeared to be in five different band- tial evidence to support the verdict, this court writings, and called the jury's attention spe- does not interfere therewith. James v. Mucifically to the several parts that appeared tual Life Ins. Co., 148 Mo. 1, 49 S. W. 978. to have been written by different persons. Where a verdict shows on its face that it is Defendants' counsel objected to the remarks. the result of passion, prejudice, or misconThe court overruled the objection, and the duct of the jury, this court has set aside defendants excepted, and now assign the verdicts; but such cases are rare. The mere same as error. It is urged that, as the at- fact that the preponderance of the evidence tention of the witnesses was not called spe- may, in the opinion of this court, be against cifically to the alleged difference in hand- the verdict, is no foundation for the charge writings, and as there was no evidence that that the verdict is the result of passion, prejthe contract had been changed in any re- udice, or misconduct. This court can only spect except as to the alteration of July 15, read the evidence that is preserved in the rec1898, the remarks of counsel were not a le- ord or abstract of the record, and what might gitimate argument. The contract was itself appear from that to be a preponderance of in evidence, aud was therefore a proper sub- | the evidence might be a totally erroneous ject for comment or debate with respect to impression, for the preponderance of the eviany matter that appeared on the face there- dence does not mean the greater number of. Even if the attention of the witnesses of witnesses. Many other considerations enhad been called to the difference in hand- ter into the calculation as to the preponderwritings contained therein, and even if the ance of evidence. The character of the witwitnesses had said that it was written by nesses, their manner and deportment on the the same person, or if expert witnesses had stand, their appearance, their character, which so testified, it would still have been the nature has stamped upon their countenances, province and duty of the jury to decide the are all matters which enter into the calcufact as to whether the different portions of lation as to the preponderance of the evithe contract had been written by different dence, and are matters which the jury and persons or not. The contentions and theo- the trial court have before them and which ries of the respective parties were distinctly this court does not see. The testimony in and clearly defined before the jury, and the this case is of that character usually found argument of counsel was a legitimate argu- in cases and controversies of the nature of ment upon the whole facts before the jury. this case, and the manifest bitterness of

14. The refusal of the court to give the the parties exhibits itself in every line of the defendants' first instruction is assigned as record. This case is a striking illustration error. That instruction told the jury that of the wisdom of the rule or practice of this if they believed that the plaintiff had author- court that leaves the determination of conized the defendants to sell his farm for $23 per troverted questions of fact to the jury. acre, and to give defendants 5 per cent. on With the findings of fact in this case in the first $1,000 and 212 per cent. on the re- favor of the plaintiff, and failing to find any maining purchase price, and all over $23 per prejudicial error in the law of the case as acre the defendants might sell the plaintiff's applied by the trial court, it follows that the farm for, and afterwards authorized the de- judgment herein must be affirmed. It is so fendants to sell the farm for $20 an acre, then ordered. All concur. the plaintiff could not recover. There was no evidence to support such a theory, nor was the case tried on such a theory by either of the parties hereto, and therefore the in

UKMAN V. DAILY RECORD CO. struction was properly refused.

(Supreme Court of Missouri, Division No. 1. 15. The refusal of the court to give de

June 15, 1905.) fendants' instructions Nos. 2, 5, 6, 7, 8, 9, and


SUIT. 10 is assigned as error. It is unnecessary

Under Const. art. 2, § 14, leaving the to reproduce, even in substance, the instruc

question of libel to the jury, the court may ditions referred to, or to more specifically re- rect a nonsuit, though it cannot coerce a verfer to them, to determine the action of the

dict for plaintiff.

2. SAME court in reference thereto, than to say that


TRADE. they either stated propositions which were A false publication, impairing the credit fully covered by the 11 instructions given for of a merchant or trader by imputing insolvency, the defendants, or else they were predicated

dishonesty, or trickery touching his trade or oc

cupation, is libelous per se. upon hypotheses which had no foundation

[Ed. Note.-For cases in point, see vol. 32, in either the facts or the theories upon which

Cent. Dig. Libel and Slander, $ 87.] the defendants tried their case.

3. SAME-PLEADING-INNUENDO. 16. Lastly, it is contended by the de

Where the meaning of an alleged libel does fendants that the preponderance of the evi- not plainly appear in the words used, tñe extrisic facts should be alleged by way of in- transit, and persons from whom he had borde szent, and the libelous charge should be fol

rowed money or who had given him credit besed by an innuendo applying the words to the matter pleaded.

refused to lend him money or give him cred[Ed Vote.--For cases in point, see vol. 32, it, and persons from whom he wished to Céal Dig. Libel and Slander, ss 187–197, 205 buy goods on credit refused to sell him the 218)

same, so that, being unable, by reason of 4. SAJE-INNUENDO_ENLARGEMENT.

defendant's said libel, to pay his creditors Wbere plaintiff in a libel suit alleged that the debts he owed, he was compelled on the difeodant in certain mercantile reports publisbed that plaintiff had sold his stock in trade

21st day of March, 1902, to file a petition in for $1, "meaning to charge that plaintiff had bankruptcy, and was damaged in the premtransferred his business for a nominal consid- ises in the sum of $10,000. eration." it was an enlargement of the meaning

The material averments of the amended as set forth in the innuendo to claim that the words signiôed dishonesty in a business way.

answer, borrowed from the summary formu5. SAME-DEFENSES—TRUTH.

lated by appellant, are as follows: "First. If the publication that defendant had sold It admitted the defendant to be a corporabis stock in trade for a consideration of $1

tion, and its chief place of business in St. sbald be construed as imputing insolvency, it

Louis, state of Missouri, and denied each is not libelous, if defendant was insolvent at the time of the transfer, under Rev. St. 1899,

and every other allegation in plaintiff's pe$t making the truth a defense in actions tition. Second. It alleged that the defendfor iibel.

ant published a daily newspaper devoted to (Ed. Note.-For cases in point, see vol. 32,

the publication of the records of the courts Cert. Dig. Libel and Slander, $ 152.]

of the city of St. Louis; that said paper also Appeal from St. Louis Circuit Court;

sets forth transfers recorded in the recordFranklin Ferris, Judge.

er's office in the city of St. Louis; that it is Action by Henry Ukman against the Daily the custom of the recorder of deeds to furRecord Company. From a judgment for de

nish the defendant memoranda of transfers tendant, plaintiff appeals. Affirmed.

recorded in said office; that the recorder of Bass & Brock, for appellant. W. B. Ho- deeds will not permit the defendant to take Der, for respondent

such information from the records, but re

quired the defendant to receive the same LAMM, J. Suit for damages for an al- from an agent of the recorder of deeds. leged libelous publication. At the close of Said answer further stated: That on the plaintiff's case the court gave an instruction 1st day of February, 1902, the said agent in the nature of a demurrer to the evidence,

furnished to the defendant a memorandum, bereupon plaintiff took a nonsuit with under the heading 'Bills of Sale,' in the folleave. After an unlucky motion to set the lowing language: 'A. G. Ukman, 612 ChestDopsuit aside, plaintiff, on proper steps, per

nut street, to Miss A. Handschiegel, cigar fected an appeal and brought his case here. outfit, $1.00.' That on the 3d day of Febru

The paper issues may be formulated thus: ary, 1902, the defendant published the same,

The petition alleges that plaintiff was en- but did not mean to charge the plaintiff with gaged in selling cigars in St. Louis under having transferred his business and stock of the name of A. G. Ukman Cigar Company, cigars for consideration of one dollar, and and in the conduct of his business had es- did not mean to charge that the plaintiff had tablished and maintained an excellent credit transferred his business and stock of cigars with the business world at home and abroad; for any consideration. That as soon as the that defendant is a domestic corporation do- defendant learned that the consideration ing business in the city of St. Louis, print- stated in the bill of sale was in fact $700, ing, publishing, and circulating among busi

instead of $1, it at once published a correcDess people generally, including the business tion of said error, under the same heading, Den having dealings with plaintiff, a daily with equal prominence, for two successive paper known as the St. Louis Daily Record, days. Third. Said answer further alleged and in an issue of that paper of date the 3d that the plaintiff did, by bill of sale dated the of February, 1902, "did utter, publish, and 31st day of January, 1902, convey to Miss A. circolate, of and concerning the plaintiff, the Handschiegel a certain stock of cigars and following false, malicious, and libelous cigar fixtures, such as counters, showcases, words: “Bills of Sale.---A. G. Ukman, 612 wall cases, etc., located at 612 Chestnut Chestnut, to Miss A. Handschiegel, cigar out- street, city of St. Louis; that said publicafit, $1.00.' Meaning by said words to charge tion was not libelous and did not injure the the plaintiff with having transferred his said plaintiff; that the said cigar business of the business and stock of cigars for the nominal plaintiff was conducted by him merely for consideration of $1 to the person aforesaid.” the purpose of enabling him to sell some old It was further alleged that defendant dis- fixtures and at a loss; and that at the time tributed said paper containing said libel of the alleged publication the plaintiff was among the business people aforesaid, and insolvent and in a failing condition, and that they believed the libel to be true, and there said publication could not and did not injure by plaintiff had been injured in his business, the plaintiff. Fourth. The answer further credit, and reputation, and people from stated, by way of mitigation of damages, whom be bad bought cigars stopped them in that the business of the plaintiff was under

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