Dawson v. Wombles

NORTONI, J. (after stating the facts). — Appellant assigned as error the action of the court below in-peremptorily directing a yerdict for the plaintiff. Judge Thompson, in his work on trials, lays down the law thus: “When there is nothing for a jury to determine except the amount of the principal and the interest due on a note, it is competent for the court to instruct them as to the character of their yerdict.” 2 Thompson, Trials, sec. 2265. But this rule does not obtain in Missouri. Our Supreme Court has long since said: “It is plain that the jury must make a finding upon all the issues presented by the pleadings. All the facts necessary to support the judgment must be found, and the court is not authorized to invade the province of the jury in this respect. ...'. The amount of the debt due at the time was not passed upon by the jurors, and this could only be done by them as triers of the fact.” Cates v. Nickell, 42 Mo-. 169. In the case above cited the court based the decision upon the statutes of 1865, chapter 169, section 21 and 26 and said: “These sections contain the provisions by which this question must be determined. The first directs that fin every issue for the recovery of money only, or specific real or personal property, the jury shall render a general verdict.’ The text provides as follows: ‘When a verdict shall be found for plaintiff, in an action for the recovery of money only, the jury shall also assess the amount of the recovery.’ ” R. S. 1899, secs. 721, 726. The -facts before' the court in that case were, the jury had returned a general verdict on a note for the plaintiff. The court discharged the jury and figured the amount of note and interest for which [539] judgment was entered. The judgment was reversed for the reason stated. This case bas been- followed by the Supreme Court and by this court and the Kansas City Court of Appeals. Burghart v. Brown, 60 Mo. 24; Ryors v. Prior, 31 Mo. App. 555; Poulson v. Collier, 18 Mo. App. 583; Dyer v. Combs, 65 Mo. App. 146; Corbitt v. Mooney, 84 Mo. App. 645. Corbitt v. Mooney, supra, was a suit on a note against a surety. The execution of the note was admitted. The court instructed the jury to find for the plaintiff in the sum of $522.50. Judge Ellison said: “It was the province of the jury to calculate the amount due and the court should not have directed what amount the verdict should be.........It is as much of a violation of the proper practice for the court to first calculate the amount and interest and then direct the jury to find that amount as it would be to do so after the jury had found generally for the plaintiff.”' It seems that the doctrine has been carried to the extreme in this State; but we must remember that the cases above cited originally rested upon the authority of the Supreme Court’s interpretation of the statutes above referred to, and there seems to be no good reason, aside from the statutes, why in a proper case, say in a case of a suit on a note between the original parties thereto (where the execution of the note is admitted, the note itself making a prima facie case without parol evidence, and the defense interposed thereto* has wholly failed) the court should not figure up the amount of the note and interest and direct a verdict for the plaintiff, as it amounts to no more than the court peremptorily directing the jury as to the construction of a written contract which is not only proper, but the duty of the court. The law is well settled in this State, however, that it is the province of the jury to make the computation and that it is error for the court to do* it for them. It is true there are cases where a peremptory instruction to find for the plaintiff is permissable; and such is said to be proper, in a case under the pleadings [540] 'turning wholly on the construction of a contract which is always a question of law for tbe court and not of fact for the jury; or when the answer admits a plaintiff’s cause of action and pleads new matter as a defense and the evidence wholly fails to support such defense. The general rule is, however, that where a plaintiff introduces parol evidence to support his case, the issues of fact should be submitted to the jury. Even though the evidence is all one way, it is the province of the jury to weigh and consider it and to answer whether or not it believes the evidence to be true. It is an invasion of the province of the jury for the court to' direct them that they must accept as true and act upon the evidence of witnesses. Wolff v. Campbell, 110 Mo. 114, 19 S. W. 622; Ford v. Dyer, 148 Mo. 528, 49 S. W. 1091; Vincent v. Means, 82 S. W. 96; Bryan v. Hickman, 4 Mo. 106; Vaulx v. Cambell, 8 Mo. 224; De Graw v. Prior, 53 Mo. 313; Gregory v. Chambers, 78 Mo. 294; Steamboat Memphis v. Matthews, 28 Mo. 248; Crow v. State, 14 Mo. 252. Appellant contends that the court erred in excluding from evidence the deed of trust securing the notes sued on, and the release thereof executed by J. W. M'. Palmer, reciting that the debt therein had been fully paid and acknowledging satisfaction thereof. Under the evidence in this case, this ruling of the trial court was certainly error. It was proved by the witness Palmer that, one of the notes mentioned in the deed of trust as having been paid was the identical note in suit. It was not only proved by respondent that J. W. M. Palmer had acted for the parties in doing all the writing, drew up and signed the note in the first instance, but had at all times kept the note under his control and management for his daughter until after his brother’s death; that he had acted for his daughter in collecting from the maker and crediting on said note the only payment ever made thereon. In .fact no one else ever had anything to do with the note until after James R. Palmer’s death. Respondent had, by thus leaving con [541] trol, management and custody of tbe note with, her father, with authority to collect and credit thereon, held him out to the maker as her agent for the purpose of collecting, crediting and discharging the note, and in the event the note was paid to him while thus being held out as agent, a receipt executed by him under those circumstances would be as valid and binding as if executed by the respondent herself. If a principal by his course of dealing, holds one out as his agent to receive and credit money on securities and thus induce his creditors to pay money to such person, he is certainly concluded thereby. To permit the principal in such a case to deny the authority of the agent would be to perpetrate a fraud upon the debtor. Vaderline v. Smith, 18 Mo. App. 55; Gibson v. Zeibig, 24 Mo. App. 65; Ingalls v. Averitt, 34 Mo. App. 371; Ferneau v. Whiteford, 39 Mo. App. 311; Sharp v. Knox, 48 Mo. App. 169; Brooks v. Jameson, 55 Mo. 505; Story, Agency, sec. 127. “The authority to receive payment on securities may often be implied from their possession by the agent. . . . The presumption in these cases is founded upon the agent’s possession of the securities.” Mechem, Agency, sec. 373. “Authority to receive payment may be implied from facts and circumstances existing prior to or in connection with the payment and the holder of paper may be estopped to deny the authority of one whom he has clothed, intentionally or through negligence, with ostensible authority.” 7 Ency. Law & Proced., p: 1031, par. B. Plaintiff should have been permitted to introduce in evidence the deed of trust and the release thereof signed by respondent’s agent, for what it was worth, as tending to prove payment of said note. The court erred in excluding this evidence. Of course we all understand that in many cases deeds of trust and mortgages are released of record in order to accomodate the parties for some reason among themselves sufficient at the time, when in fact no payment has been made thereon and this is quite likely to occur among members of a family. The re [542] lease acknowledging satisfaction is not final, however, or conclusive on the question of payment. . It can he explained by other evidence parol or otherwise, like any other receipt, if there is an explanation to make. A receipt is aways subject to explanation and construction. There is no sanctity about it which renders it conclusive. Aull v. Trust Co., 149 Mo. 1, 50 S. W. 289; Allen v. Kennedy, 91 Mo. 324, 2 S. W. 142; Bobb v. Bobb, 89 Mo. 411, 4 S. W. 511; Altringer v. Capeheart, 68 Mo. 441. It is unnecessary to notice the instructions refused. For the errors mentioned the judgment is reversed and the cause remanded. All concur.