Wilson v. Standard Operating Co.

ELLISON, J. This action was brought to recover from defendant a commission for the sale of certain mining interests and mining plant. The plaintiff recovered in the trial court. Defendant is a corporation and bases its claim for a reversal of the judgment on the ground that there was no authority in defendant’s agents or officers to employ plaintiff to-negotiate a sale of the property aforesaid. The plaintiff meets, this point on the ground that no such issue was tried, nor was such issue raised in the circuit court. If this be true we must refuse to consider it here. Sec. 864, R. S. 189-9; Pattison v. Letton, 56 Mo. App. 325, 336; Haniford v. City of Kansas, 103 Mo. 172; Burdoin v. Town of Trenton, 116 Mo. 358. The theory now advanced is not the one upon which the case was tried. Mantz v. Maguire, 52 Mo. App. 136; Querback v. Arnold, 55 Mo. App. 286; Witascheck v. Glass, 46 Mo. [123] App. 209. The answer of defendant on which the case was tried was a general denial, and there was a demurrer to the evidence submitted in plaintiff’s behalf.- There was an answer filed by defendant and withdrawn just before the trial, in which, coupled with a general denial of the petition, there was other matter set up whereby the sale alleged by plaintiff was admitted. This was introduced in evidence by plaintiff. The defense, as disclosed by the record, including the instructions for defendant, was that whatever plaintiff did in making the sale was “in conjunction and conjointly with or through” one Andrews. And that afterwards “defendant paid to said Andrews, for negotiating and making said sale, a commission and compensation of one thousand dollars.” In such circumstances it is not allowable for defendant to come here with a complaint which was never broached to the trial court. The mere filing of a general demurrer to the evidence does not raise up issues which have been cut out by admissions. The whole record here shows affirmatively that the demurrer did not cover the point now made, and was not so intended. The judgment will be affirmed. All concur.