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relating to the degree of the plaintiff's inju- crushed into the Bellefontaine car, or those ries.

on the latter in not avoiding the collision. 2. The petition alleges that the defendant Error not affecting the merits of the action received the plaintiff on its car as a passen- is not to be regarded on appeal. Section 865, ger, and by Rev. St. 1899.

to his point of destination. In the instructions given for plaintiff on the measure of damages. given for plaintiff the jury are told that if The testimony for the plaintiff tended to they should find certain facts, among them show that his injuries were such as caused that "the defendant received the plaintiff as a great suffering, physical and mental, that passenger to be carried for hire,” they should they disabled him from pursuing his avocafind for the plaintiit. There was

no evi.

tion, and they were likely to be permanent. dence that plaintiff paid any fare, or that The instruction complained of is as follows: fare was demanded. The submitting of that "If under the law and evidence you find the question to the jury is assigned for error. issues in this cause for the plaintiff, the damThe argument in support of the assignment is ages which you may award him should be that the relation of passenger and carrier is compensatory only, and in estimating such created only by contract, and that under the damages you will take into consideration and general denial the burden was on the plaintiff allow him for expenses for doctor's bill into prove the contract alleged, and, failing to curred, if any, in treating his injuries; also, offer any proof on that point, there was noth- compensation for the time lost, if any, during to go to the jury-citing in support of ing his illness occasioned by his injury. And that proposition Schepers v. Railroad, 126 while the evidence may not prove any speMo. 665, 29 S. W. 712; Schaefer v. Railroad, cific sum in dollars and cents that plaintiff 128 Mo. 64, 30 S. W. 331. Those cases do may bave been damaged by reason of physhold that the relation of passenger and car- ical pain and mental anguish, yet you may rier grows only out of contract, but they also allow him what you believe to be just and hold that the contract is either express or fair to compensate him for such sufferings, implied. The evidence in this case shows if any. You will also take into considerathat the plaintiff boarded one of defendant's tion, in estimating his damages, his diminstreet cars at Lucas avenue, and was carried | ished capacity for earning money, if you so in it as far as the crossing of Park avenue believe from the evidence, and on account and Gratton street, where the accident occur- thereof make him such allowance as you red. The facts that he was received in the may believe to be fair and just for any loss vehicle of a public carrier and was being that you may believe from the evidence he carried in the manner of a passenger, noth- has sustained in the past by reason thereof, ing else appearing, were sufficient for the and for any loss you may believe from the inference that he was there under the im- evidence he may sustain in his future earnplied contract that created the relation be- ings, by reason of such diminished earning tween him and the defendant of passenger capacity as may be occasioned by his inand carrier. There was no error in sub- jury.” The criticism of plaintiff's instrucmitting that question to the jury.

tion is that it authorizes a recovery for loss 3. The petition alleges that, while the of time, and also for diminished earning plaintiff was in a car of the defendant, its capacity during the same period, and for loss servants so carelessly and negligently man- of what he may sustain in the future, with aged another one of its cars by a "negligent emphasis on the word “may." The instrucand violent rate of speed" that it was brought tion does direct the jury to consider the into violent collision with the one in which plaintiff's loss of time and diminution of his plaintiff was being carried, and the accident earning capacity, past and future, and posresulted therefrom. In an instruction for the sibly one reading that instruction might conplaintiff the jury were told that if they should strue it to mean that plaintiff was to be comfind certain facts, among them that the de- pensated for time lost in the past and wages fendant “so negligently ran and operated lost in the same past period by reason of said cars, or either of them,” as to cause diminished earning capacity; but that would the collision, the verdict should be for the be a strained construction and an unreasonplaintiff. It is assigned for error that the able one. The value of his lost time could words in quotation rendered the instruction be estimated only by the value of his lost erroneous, as authorizing a recovery on the wages. During some of the time he might finding of an act of negligence different from be entirely incapacitated, and in other some that stated in the petition; that is to say, his earning capacity be only diminished. In on the finding that the car in which plain- view of this criticism, we see how the intiff was riding was negligently managed. If struction might have been worded so as to the instruction was broader than it should render it more accurate; but that may be have been, the error does not reach the said of almost every instruction, when viewmerits of the case. According to the uncon- ed under the microscope. tradicted evidence the accident was caused The learned counsel for appellant do not by the negligence of defendant's servants, attach much importance to that point, but either those on the Fourth Street car, which do attach importance to another point in the

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instruction. They say: "The vital error in tended to show that the plaintiff's injuries this instruction, however, is that it directs were not as severe as he represented them i recovery for loss of future earnings that to be; that the condition of his legs was due the plaintiff may sustain by reason of di- to hysterical anasthesia, which is a disturbcinisbed earning capacity that may be oc

ance in the function of the central nervous esioned by his injury.” The counsel give system, and such cases usually get well.

the word “may”. that connection the When recovery comes, it is spontaneous. A Leaning of the term “possibly might," and physician who examined the plaintiff by orthey say: "This instruction violates the der of the court found no evidence of diate that future damages for injuries, pain, betes or ankylosis. Another learned witness or suffering must be confined to such as the testified that traumatic neurosis was not a eridence renders it reasonably certain will disease, but was a condition. “The nervous result from the injury." That is the correct system is in a bad condition—that is, does rale, as shown by the numerous cases cited not act in a proper manner-and they are in its support, among which are Russell v. mentally disturbed more easily, and they Colombia, 74 Mo. 480, 41 Am. Rep. 325; are very miserable, irritable, little things Brad'es v. Railway, 138 Mo. 301, 39 S. W. worry them, and they may lose flesh, or else 03; Chilton v. St. Joseph, 143 Mo. 192, they may become weak as far as their mus& W. 166. The word "may," used as an cular system is concerned.

Under stailary verb, has a wide scope of meaning, proper conditions they recover, sometimes into which the idea of mere possibility en- very promptly, sometimes with time. They ters; bot it also comprehends the idea of may run for the course of a year or two. portability, and also the thought of what is * They do not die of traumatic neurosis. with more or less certainty to be expected,

It is called hysterical paralysis. It and whether it is to carry the one thought or is not a paralysis based upon a defined lesion the other often depends on the context. of the spinal cord. * * The recovery of The Ford “may” is used in this instruction sensation may be rapid, or it may be slow. Dipe tines. If we should erase it whenever It may be blood, or it may be paralysis." it occars, and write in its place "possibly The award of the jury was $23,400. That Dight." we would convert it into an instruc- award in our opinion is excessive. We recton conveying a very different meaning from ognize the difficulty in laying down a rule that which a casual reading of it now con- for the measure of damages in such cases, ters. This instruction is an almost literal and it is always with great hesitancy that copy of one approved by this court in Rodney we interfere with the verdict of a jury on T. Railroad, 127 Mo. 676, 28 9. W. 887, 30 S. this question; but we feel constrained to W. 150, where the word “may” is used in do so in this instance. In our opinion $15,the same sense. The term "may sustain in 000 would be a fair compensation to the the future," in reference to the same sub- plaintiff for the injuries he has suffered. If, at has been approved in other cases by therefore, the plaintiff sees fit within 10 days this court. O'Connell v. Railway, 106 Mo. to remit $8,400 of his award, we will affirm 484, 17 S. W. 494; Duerst v. Stamping Co., the judgment; otherwise, the judgment will 163 Mo. 617, 63 S. W. 827. A safer word be reversed, and the cause remanded for a ttan “may” could be used to express the new trial. All concur, except MARSHALL, dea of probability or reasonable certainty; | J., not sitting. bat we will not hold an instruction erroneous, where the context, in the light of the facts of the case to which the instruction is applied, shows that it is used to imply rea

HARRISON V. LAKENAN et al. sonable probability or reasonable certainty.

(Supreme Court of Missouri, Division No. 1. 5. Lastly it is insisted that the damages

May 24, 1905.) are excessive. The testimony for the plaintiff tended to show that at the time of the

1. BROKERS-COMMISSIONS-PLEADING. acrident he was 42 years old, in the prime

Where, in an action against brokers who

had effected a sale of plaintiff's land, the peof life, strong and healthy, weighing 190 tition alleged that defendants received from the sounds; by the collision he was thrown to purchaser a sum of money for the use of plainthe other side of the car in which he was

tiff, and retained it, refusing to pay it over, seated, his back striking the edge of a seat

the petition was not insufficient for failing to

allege that defendants were authorized to colon that side, inflicting a painful injury, and lect the money. be was carried home in an ambulance; that 2. SAME-VARIANCE AFFIDAVIT OF PREJUbe has never been able to stand or walk Dce that time; that he has lost 40 or 50 A defendant could not insist on appeal that pounds of weight, is required constantly to

the petition alleged a written contract, while the

proof showed a verbal one, where he filed no take purgatives to move his bowels, has affidavit under Rev. St. 1899, § 655, providing diabetes and paralysis of both his legs, and that, when it shall be alleged that a party has bas manifestation of progressive nervous de

been misled by a variance, the fact shall be

proved by affidavit, whereupon the court may cay. He is a helpless cripple, and there is

order the pleading to be amended. ittle bope of any improvement. The ex- [Ed. Note.—For cases in point, see vol. 39, pert testimony on the part of the defendant Cent. Dig. Pleading, $S 1428-1432.]

DICE.

deceived him, then the contract was not binding, was not erroneous on the theory that the action was not one for the cancellation of a contract. 12. SAME-INSTRUCTIONS ASSUMING Facts.

Where, in an action to recover from brokers a portion of the purchase money retained by them for effecting a sale of plaintiff's land, the evidence showed that the purchaser gave his check to plaintiff, and he turned it over to defendants, who subsequently gave plaintiff their check, an instruction assuming that defendants received the money from the purchaser was not erroneous. 13. SAME-ARGUMENTS OF COUNSEL.

On an issue as to whether brokers had made an alteration in a written contract between themselves and their customer it was not error for plaintiff's counsel, in his argument to the jury, to comment on the fact that the contract which was before the jury appeared to be in five different handwritings. 14. APPEAL-Review-QUESTIONS OF FACT.

The mere fact that the preponderance of the evidence may, in the opinion of the Supreme Court, be against the verdict, is no ground for disturbing the judgment where there is substantial evidence to support it.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by Thomas Harrison, Sr., against J. J. Lakenan and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

C. A. Barnes, F. R. Jesse, and Geo. Robertson, for appellants. R. D. Rodgers and P. H. Cullen, for respondent.

3. SAME-DEMURRER TO EVIDENCE.

Where there was substantial evidence introduced by plaintiff to establish the allegations of the petition, a demurrer to the evidence was properly overruled.

[Ed. Note.--For cases in point, see vol. 46, Cent. Dig. Trial, $8 346, 347.) 4. SAME-ADMISSIBILITY OF EVIDENCE-ERBOB CURED BY INSTRUCTION.

Where the issue was whether plaintiff bad consented to an alteration in a written contract between himself and defendant, the admission of evidence bearing on the question whether defendant had by false representations induced plaintiff to agree to a modification was cured by an instruction that, if plaintiff had consented to the modification, the verdict should be for defendant. 5. Cross-EXAMINATION-HARMLESS ERROR.

There was no error prejudicial to defendant in cross-examining him as to the meaning of letters written by him to plaintiff, defendant being thus offered an opportunity of explaining the meaning of his letters.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $$ 4140-4145.] 6. ACTION-DEMAND-WAIVER.

By the express provisions of Rev. St. 1899, $ 1575, an objection that no demand for the subject matter of the suit was made prior to the action is not available unless it is expressly set up by way of defense and accompanied by a tender. 7. TRIAL - CREDIBILITY OF WITNESSES INSTRUCTIONS.

An instruction that in determining the weight and credibility to be given to the testimony of any witness the jury might take into consideration the "character" of the witness was proper where each party contended that the testimony on behalf of the other party was unreliable. 8. BROKERS — COMMISSIONS ALTERATION OF CONTRACT-EFFECT.

Where brokers, without the consent of their customer, altered a written contract so as to give them a greater commission, the alteration rendered the entire contract void. 9. SAME-INSTRUCTIONS.

On an issue as to whether brokers, without the consent of their customer, had materially altered the written contract, it was not error to instruct that the customer was not bound by the alteration unless he was present in the office of the brokers at the time the alteration was made, the brokers' theory being that the alteration was made at their office, and there being no evidence to show that it was proposed, agreed to, or made at any other place. 10. SAME-ACTION AGAINST BROKER_MONEY RECEIVED-INSTRUCTIONS.

In an action against brokers to recover moneys retained by them out of the purchase price, an instruction that, though plaintiff gave defendants authority to sell his land at specified sum per acre, such authority did not excuse defendants from selling for the best obtainable price, was not erroneous on the theory that it made the agent exceed the instructions of his principal, and made him liable if he did not. 11. SAME--FRAUD--INSTRUCTIONS.

Where a landowner sued his brokers, who had effected a sale, to recover a portion of the purchase money which had been retained by them on the ground that the contract was not binding on him because he had been fraudulently induced to enter into it by the act of the defendants in not correctly reading the contract to him, and also on the ground that the contract had been nullified by an alteration thereof by defendants, an instruction that, if plaintiff signed the original contract, defendants, in reading it to him having fraudulently

MARSHALL, J. This is an action at law to recover $4,907.10 alleged to have been received by the defendants for the use of the plaintiff, and by the defendants retained without the knowledge or consent of the plaintiff. There was a verdict and judgment for the plaintiff for $4,888, from which, after proper steps, the defendants appealed.

The issues: The petition was originally in three counts, and upon motion of the defendants the plaintiff was required to elect upon which count he would stand, and accordingly he elected to stand on the first count of the petition. In substance, that count alleges that the defendants were and are partners engaged in the real estate business; that in June, 1898, the plaintiff employed defendants to sell his farm, consisting of 985.82 acres of land, in Callaway county, Mo., and agreed to pay them for so doing a commission of 5 per cent. on the first $1,000 realized from the sale, and 242 per cent. on each remaining $1,000 SO realized; that the defendants agreed so to do for said commission; that thereafter, on the 14th of October, 1898, de fendants sold the land to one L. K. Scroggins at the price of $25 an acre, aggregating $24,645.50, and that they collected said sum from purchaser therefor; that the defendants are entitled to retain, as their commission, the sum of $522; that about October 25, 1898, the defendants paid to the plaintiff the sum of $19,216.40, received by them from the sale of said land as aforesaid, “leaving a balance of $4,907.10 due me out of the purchase price

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of said land"; that said last-named sum was 11th of July, 1898, they wrote the following collected by the defendants for the use of letter to the plaintiff: “We recently saw Mr. the plaintiff as a part of the purchase price Wall and had quite a talk with him about ef said land about the 14th day of October, your farm, and he talks like he might buy it 1868, and retained by them, without his at $20.00 per acre. Would come and take a Inowledge or consent; and that, though de- look at it if it was priced at that; that is, manded, the defendants have failed and re- 960 acres, or about that. Now, while we confused to pay the same to the plaintiff. sider this a low price, it is very seldom that The answer is a general denial.

we get a cash buyer for a farm of that size, The case made is this: Prior to and on the and if you think best we will write him to 11th of September, 1897, the plaintiff was a come to see it with the understanding that man S2 years of age, a farmer, and owned he can buy it at $20.00 per acre, if he wants about 1,249 acres of land, more or less, in it. Of course we did not go into particulars Callaway county. The defendants were part- in regard to possession, etc. Let us bear Ders, and for many years bad been engaged in from you.” The defendants say that in rethe real estate business in Mexico, Mo. On sponse to the letter the plaintiff called upon sajd 11th of September, 1897, at plaintiff's so- them at their office in Mexico on the 15th of licitation, as the defendants say, or at de July, and authorized them to sell the land, ferdants' request, as the plaintiff says, the and at the same time agreed with them to plaintiff placed said land in the hands of change the original contract so as to reduce the defendants for sale. A written author- the price of the entire tract to $20 per acre, ity or contract was then entered into between and to change the commission of the defendthe parties, as follows:

ants, as aforesaid, so as to give defendants "I hereby authorize and empower Lakenan the sum of $500, and all over $20 per acre they & Barnes, of Mexico, Missouri, to sell for might sell the land for, and that accordingly De tbe following real estate situated in Cal- the defendant Barnes, in the presence and laray County, Missouri: (Here follows a de with the consent and by the authority of the scription of the land), and containing in all plaintiff, and in the presence of J. J. Lake1.219 acres, more or less, for the sum of nan and Latney Barnes, wrote in the blank 83 per acre, or my home place, 950 acres, at space that had been left in the original conthe same price, or the 300 acre farm occupied tract the words above reproduced in said conby Jack Harrison, at the same price, and tract and embraced in the brackets therein asso (a certain 80-acre tract described] at and italicised, and which are to the effect $20.00 per acre, separately or with other land. just stated. On the other hand, the plain

"UJuly 15, 1898, price reduced to $20.00 pr tiff denies that he made any such modifiGCTE. L. & B. to get $500.00 out of $20.00 cation or change in the original contract, or p acte, and anything they can get over $20.00 that he saw the same written into the conpo acre.]

tract, or knew that it had been so done, or "One halt or more, option of buyer, cash consented thereto. In August, 1898, Senator or possession, and balance in one year with Wall was killed, and the defendants sent the 8% interest from date.

plaintiff a paper containing an account there*I promise to pay to said agents 5% com- of, and under date of August 20, 1898, wrote mission on the 1st $1,000.00 of each sale; the plaintiff as follows: “We send you here21,2% on balance, per cent. commission on the with a paper in which you will notice of gross amount of said real estate, or any part the death of Hon. H. W. Wall marked. Mr. thereof may bring when by or through them, Wall was the gentleman to whom we showed or if sold by me, to pay party to whom they your farm; of course this will put an end to bare shown this property. •

In case

all negotiations with him. We are working said agents desire they may trade or sell on another man from whom we will have to said property for what they please just so take some Kansas land at $25.00 and want they account to me for said price less said you to price it at not less than that, and commission."

would like for you to price it at $27.50 to The portions of the writing omitted are not $30.00 in a general way. This don't keep you Caterial to this controversy. In the fall of from selling it if you get a chance. Of course 1807 the defendants procured Senator Wall, we know that in case we effect a sale or of Stanton, Ill., to examine the place. The trade we account to you for the farm at defendants contend that on that occasion the $20.00 per acre less a commission of $500.00. piaintiff told the defendant Barnes that he We are in hopes we will have this man to would take $20 per acre for the land. The look at the place this coming week.” There paintiff says that in June, 1898, when Sen- is a conflict in the evidence as to whether or ator Wall examined the land a second time, not the plaintiff received this letter; at any the defendant Barnes told him he could not rate, he never answered it, and he says he tell the farm at more than $20 an acre, and never received it. Thereafter the defendants be then authorized him to sell at that price. induced L. K. Scroggins, of Illinois, to examThe defendants say that in July, 1898, Sen- ine the land. On the way back from the land itor Wall indicated to them that he would to Mexico Scroggins offered to buy 985.82 come to Missouri and buy the land if he acres at $25 per acre, and the defendant could get it for $20 an acre, and that on the Barnes, representing the defendants, accept

ed the offer, the plaintiff having told Scroggins that he had put the land in the defend

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whatever they did. Accordingly, on the 14th of October, 1898, the defendants entered into a contract of sale of the land to said Scroggins for $25 per acre, aggregating $24,645.50, of which $15,000 was to be paid when the deed was delivered, and the balance to be paid on March 1, 1899, less 6 per cent. interest on the $15,000 from the day of its payment until March 1, 1899. Said contract further recites that Scroggins executed and left with the defendants his check for $15,000. On the same day the defendants wrote the plaintiff as follows: “We, this afternoon, sold your farm of 1,000 acres, more or less, to Mr. L. K. Scroggins of Illinois so as to net you the amount agreed upon between you and ourselves, namely $20.00 per acre, less $500.00.” Then follow certain directions as to plaintiff procuring an abstract of title and having a survey made; and then the letter continues: “We have a good big check to be presented for payment when you make the deed, which will be as soon as the survey is made,

As soon as survey, abstract and deed are made you will get $8,000.00 or $10,000.00 cash, and the remainder of your purchase money March 1st, 1899, less 6% per

annum interest from now until March 1st, as interest on the cash payment he now makes. Possession to be given March 1st pext. We have in your name gone into a written contract with Scroggins on this sale. Please do not mention price to any one for that is no one's business but yourself and ourselves, and Scroggins don't want the price known." The plaintiff immediately procured the abstract of title and had the survey made, and on the 20th of October, 1898, he went to the defendants' office and executed his warranty deed conveying 985.82 acres of land to said Scroggins for a recited consideration of $24,645.50. The revenue stamp placed upon the deed amounted to $25, and the defendants say they called the plaintiff's attention thereto at the time. The defendants further say that the deed was read to the plaintiff by Latney Barnes, who had prepared the same; and when said Barnes read the clause reciting the consideration he stopped, and called the plaintiff's attention to the fact that the consideration mentioned in the deed was $25 per acre, and offered to tell him exactly what they were making out of the transaction, but that the plaintiff replied, “It don't make any difference what you made," or "I have no desire to know what you sold it for." On the other hand, the plaintiff denies that any such conversation took place, and says that when he signed the deed he supposed the sale was at $20 per acre, and did not know until nearly a year afterwards, when some neighbor spoke to him about it, and said he heard he had sold it for $25 per acre, that the sale was for more than $20 an acre, and that upon receipt of such information he sent a man to

Illinois and ascertained from Scroggins that the price paid was $25 an acre. The plaintiff further says that when the consideration in the deed was read to him the defendant Lakenan told him that the consideration mentioned in the deed was not the correct consideration, and that after the deed was signed Lakenan remarked to him that they were making a good thing on the sale of the farm, and that he replied that he did not care what they made, thinking Lakenan referred to the commission the defendants would receive.

On the 25th of October, 1898, the defendants rendered to the plaintiff the following statement of the sale:

Thomas Harrison, Sr.,
In account with Lakenan & Barnes,

Dr. Cr.
October 20th, 1898, by sale of 985.82
acres of land @ 20.00 per A.....

$19,716.40 To vendor's lien retained on land $9,320.50 Discount on advance payment..... 201.50 Revenue stamp for deed.

20.00 Commissions

500.00 October 25th, 1898, check of L. & B. on Sav. Bank.

$9,674.40

19,716.40 19,716.40 Thereafter Scroggins gave his check to the plaintiff for $9,320. The plaintiff took it to the defendants, and delivered it to them, and they gave the plaintiff their check therefor. Thus the matter stood until December, 1899, when this suit was brought to recover the said balance.

On the trial of the case the plaintiff called Scroggins as a witness, and he testified that after he had agreed with the defendant Barnes to purchase the land, and while on their way from the land to Mexico, Barnes said to him, "It won't make any difference to you to keep this thing still; maybe it will be to your advantage;" and he told Barnes it made no difference to him. The plaintiff tried the case upon the theory that the defendants were authorized to sell the land at not less than $20 per acre, and to have a commission of 5 per cent of the first $1,000 and 242 per cent. on the remainder, and that the original contract was never modified except by reducing the price of the whole tract to $20 per acre, and that the memorandum of July 15, 1898, in the bracketed and italicised clause of the contract, was never made by him or agreed to by him, and was placed in the contract without his knowledge or consent. The defendants tried the case upon the theory that said modification of July 15, 1898, was agreed to by the plaintiff, and was inserted in the contract with his knowledge and consent, in corroboration of which the defendants referred to their letter of August 20, 1898, in which they said to the plaintiff that they were to account to him at $20 per acre, less a commission of $500, and further referred to the fact stated in the account sales that they charged the plaintiff with only $20 for revenue stamps, whereas they had placed $25 in revenue stamps on the deed, and further referred to the conversation testified to by them as to the consideration named in the deed and

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