Marshall v. Ferguson

BLAND, P. J. The petition stripped of unnecessary verbiage in effect alleges, that plaintiff on May 7, 1896, loaned the defendant $218.45 to be loaned to one M. L. Freeman and wife, for which loan the Freeman’s should execute their promissory note to the defendant bearing eight per cent interest, and to become due November 1, 1896, and as security should execute a mortgage or deed of trust on lands (described in the petition), which note and mortgage when executed the defendant agreed to assign and deliver to the plaintiff; that defendant did make the loan, and take note and deed of trust, of the Freemans in his own name, but at the same time he took another note payable to himself for the sum of $312.50, which was also secured by the deed of trust. It is also alleged that the value of the interest of the Freemans in the lands did not exceed $213.45, and that they were insolvent, and that the land was afterwards sold under the deed of trust, at which sale it brought but $120, and that the defendant received the benefit of the security. The answer was a general denial; a jury was impaneled to try the cause; plaintiff offered a witness to testify in his behalf, when defendant objected to the introduction of any testimony, on the ground that the petition failed to state a cause of action; this objection was sustained, and plaintiff took a nonsuit with leave to move to set same aside. Whether a motion to set aside the non-suit was filed and preserved in the record, .depends upon the validity of the bill or bills of exceptions made and signed during the progress of the trial. The transcript shows that on May 11, 1898, the cause came on to be heard, and that plaintiff offered a witness, who was sworn; that defendant objected to the introduction of any evidence, on the ground [649] that the petition stated no cause of action; that the court sustained this objection, to which plaintiff excepted, and thereupon presented his bill of exceptions, and asked the court to sign and file the same and make it a part of the record, which was then and there (May 11, 1898) done. The transcript further shows that on the same day, May 11, the judge of the court signed another bill of exceptions, and ordered the same made a part of the record, which bill conj tains a motion to set aside nonsuit and the ruling of the court thereon and plaintiff’s exceptions thereto, the filing of an affidavit for an appeal, and the granting of the appeal. Section 2618, Revised Statutes of 1889, among other things, provides that “all exceptions taken during the trial of a cause or issue before the same jury, shall be embraced in the same bill of exceptions.” The object of the statute is to prevent the confusion that would be occasioned by a multiplicity of bills of exceptions, and to have presented historically and in regular order the exceptions taken during the progress of a trial without encumbering the bill with unnecessary recitals, to the effect that each exception was made and signed by the judge at the time it was taken. The exceptions to the proceedings in the case at bar were all taken on the same day during one sitting of the court, and while they are incorporated in what purports to be two bills of exceptions, there is substantially but one bill of exceptions in the case. The form in which the bill or bills were prepared and signed is not to be commended, but we do not think it such a violation of the statute or departure from the well recognized practice in such matters as to pronounce the bill or bills void, and we hold that the record shows that the plaintiff duly moved to set aside the ruling of the court by which he was forced to take a nonsuit and that his motion was by the court overruled, to which ruling he saved an exception. The ruling of the court that the petition does not state [650] facts sufficient to constitute a cause of action, is in our opinion erroneous. An objection to the introduction of evidence can only be interposed at the trial where the petition fails altogether to state a cause of action. If the defect is such that it would be cured by verdict, it should be taken advantage of by demurrer or motion in the regular way. Roberts v. Walker, 82 Mo. 200; Lycett v. Wolff, 45 Mo. App. 489; Hurst v. City of Ash Grove, 96 Mo. 168; Clark v. Fairley, 24 Mo. App. 429; Mumford v. Keet, 65 Mo. App. 502; Young v. Shickle, H. & H. Iron Company, 103 Mo. 324. On an objection of this kind every reasonable intendment should be indulged in favor of the petition, Hatten v. Randall, 48 Mo. App. 203, and if there is enough in the petition to support a judgment after verdict, the objection should not prevail. Donaldson v. Butler County, 98 Mo. 163; Hatten v. Randall, and Young v. Shickle, H. & H. Iron Company, supra. The petition is very inartificially drawn, and material averments are entirely omitted, but when read and construed as a whole, and the facts reasonably deducible from it are drawn, it will be found sufficient to support a judgment after verdict. The facts stated and the reasonable deductions that may be drawn from what is imperfectly stated are, that defendant as agent of plaintiff accepted plaintiff’s money and agreed to make the loan to the Ereeman’s and to take as security therefor a first mortgage on the land of the Ereemans; that in violation of this trust and of his duty as plaintiff’s agent, he took at the same time a deed of trust on the lands to secure his individual debt of $312; and from the averment that the land was sold under the deed of trust for $120, of which sale the defendant was the beneficiary, it is reasonably inferable that in the preparation of the deed of trust defendant postponed the payment of plaintiff’s money to the payment of his own. Erom this, in connection with the averment of the insolvency of the Ereemans, it is fairly inferable that plaintiff’s money will [651] be wholly lost to him, unless defendant is compelled to pay it. If all these things be true, then it follows that defendant violated the trust reposed in him by the plaintiff to make the loan as directed by plaintiff; that he was disloyal to his principal and profited in the transaction where he could not prefer his own interest over that of his principál, and should be held to respond in damages for the abuse of the trust. Winningham v. Fancher, 52 Mo. App. 458. By taking security for his individual debt on the lands designated by plaintiff to secure the loan and by preferring his debt over that of his principal, he disobeyed instructions, and if loss has ensued to the plaintiff by such departure from instructions, the defendant must make good that loss. Butts v. Phelps, 79 Mo. 302. The judgment is reversed and the cause remanded. All concur.