Henderson v. Skinner

RYLAND, J. This case was brought up to this court before, by Skinner, who was non-suited, and the facts and points then decided, with directions for future proceedings; may be seen as reported in 10 Mo. R. 205. We adhere to the decision then made, and adopting it for our government herein, shall proceed to notice only the points now arising from the instructions given by the Circuit Court. Prom these instructions, the case turned alone upon two grounds. 1. The court instructs the jury, that if plaintiff furnished defendant five hundred dollars, to be applied by defendant to the entry of land, for the benefit of plaintiff, and defendant so applied only four hundred and odd dollars, then plaintiff is entitled to recover what was not so applied, together with interest thereon at six per cent, from the time it ought to have been so applied. 2. If the plaintiff paid defendant for rails sold by defendant to plaintiff, and • defendant.afterwards made use of such rails for his own benefit, he is liable to account to plaintiff therefor, and if he has not heretofore so accounted,' plain [72] tiff is entitled to reejover in this action. 3. If the plaintiff' fails to make out a case, upon the foregoing instructions, they will find for the defendant. The jury found for the plaintiff for one hundred and fifty dollars damages. From the facts in this case it appears, that Skinner, the plaintiff, and Henderson entered into a contract for two quarter sections and a half quarter section of land, making in all five 80 acre tracts. That Skinner paid a large amount of money to Henderson, and was, when the lands could be paid- for at the land-office, to advance the purchase-money to Henderson, in order to enable him to pay for the lands; also bought the quantity of rails on the land, at the time from Henderson. It appears that after Skinner got possession of a part of the lands contracted for, that is four of the five 80 acre tracts, there was some fear entertained that he might lose the lands and his improvements too, as the contract between him and Henderson was an endeavor on their part to evade the pre-emption laws of the United States. These persons, Skinner and Henderson, were told that this contract was not a valid one. They then, mutually fearing the consequences of their illegal agreement, agreed to. burn the same. It was taken out of the depositary’s possession and burnt. Henderson never bought or paid for the other 80 acre tract; left Skinner with the four eighty’s, and from the evidence, it appears, he used for his own benefit, rails which he had sold to Skinner. Three thousand dollars, including the money to enter lands with, were the consideration passing from Skinner to Henderson. It seemed to be the object of the plaintiff, by the instructions which he prayed the court to give the jury, to recover of the defendant in this action, the pro rata consideration of the 80, acre tract, which Henderson, by the agreement, sold to the plaintiff, but which, although the money to purchase it, at the land-office, had been advanced by plaintiff to him, he yet failed to purchase for plaintiff. That is, the one-fifth part of the three thousand dollars, equal to six hundred dollars, and to recover the interest of the same at six per cent. Defendant, by the instructions which he asked the court to give, contended against the plaintiff’s right to recover in the present form of action. He relied on the contract being executed on the part of the plaintiff, and although he had only managed to execute it on his part so as to convey the two quarter sections, or the four of the five eighty’s, still he held that the burning of the original agreement, did not authorize the plaintiff to recover of him in this form of action. The instructions asked by defendant, and which the court refused to give, we consider were properly refused. The 4th instruction for the defendant, was given, which is as follows : “If the jury believe from the testimony, that a question arose at the land-office, as to the payment of the $98 or $100, between plaintiff and defendant; the defendant claiming the payment of that sum under the agreement, and the plaintiff contending that he ought not to pay it; and the plaintiff paid it with a full knowledge of the facts, and the contract was otherwise executed on the part of-the defendant, then plaintiff cannot recover for the $98 or $100, as the amount may be; they will find for the defendant.” This instruction gave the benefit of the agreement so far as the payment of the $98 by plaintiff, to the defendant; if he, defendant, had performed his part of the agreement. We will not complain of this instruction. From a full view of the whole case, as appears before us upon the bill of exceptions, we find no grounds for any just cause of complaint by the defendant, Henderson. The instructions given to the jury by the court, of its own motion, only make Henderson liable to plaintiff, if the jury shall believe he had received five hundred dollars to enter the lands with for plaintiff, and had only entered four hundred and odd dollars’ worth, then he is liable for the difference with six per cent, interest; and if he had sold rails to plaintiff, been paid for them, and afterwards used and converted the rails his own use. We find no reason for the defendant to object to these instructions. They place the case very favorably for him before the jury. We are hot so sure, but that, under the principles laid down in this very case, when before this court heretofore, the Circuit Court might have suffered very properly, a recov [73] ery against the defendant, for a failure to refund the amount, pro rata, of the 80 acre tract, which defendant originally contracted with plaintiff to convey to him. At all events, we feel no disposition to distrust this finding of the jury. The defendant has no right to complain. From the small amount of the verdict, the jury may have only designed to make defendant pay for the rails, which he converted to his own use; saying to the witnesses, that they were the plaintiff’s rails, hut he reckoned the plaintiff did not know it; a poor excuse to satisfy any honest man’s conscience. Let the judgment be affirmed. Judge Bibch, having been of counsel in the court below, did not sit in this case.