Mo.) QUINN v. VAN RAALTE On cross-examination Mersman said: "I didn't see any written assignment on plaintiff's contract with the Quality Realty Company, the holder of the title to the Forsyth tract, assigning the option to me. I don't know of Quinn ever giving me a written order to this Realty Company, assigning the contract to me, and its consent to it. I did not know that this Realty Company had anything to do with the option of the plaintiff to purchase the land. I do not think I ever saw plaintiff's contract with the Quality Realty Company. I never paid Quinn the $100 mentioned in that contract." Quinn, plaintiff's husband, testified that he signed the contract of May 27, 1909, with Ralph Coale to please Mersman, after the matter of the purchase of the land had been fully consumated. Plaintiff's testimony is as follows: own on Morgan street in 1904, and that I now The respondent Van Raalte's answer admits that he bought plaintiff's $60,000 note of the Excelsior Realty Company on the 29th day of May, 1909, and that he paid that company $50,000 for same; that the full principal and interest of said note were paid to him by the Title Guaranty Trust Company on March 29, 1910. "I am the plaintiff, and the wife of James J. Quinn. I recall the transaction between Mr. Mersman and my husband concerning the Forsyth tract of land. I bought that property. I authorized my husband, and he represented me in its purchase. We went out and looked at it in April, 1909. I signed the note for $60,000, given to Ralph W. Coale, as a part of the purchase money for this land, and executed and acknowledged the deed of trust on the land to seI let my huscure the payment of that note. band have $1,000 of my own funds to pay as In all of earnest money in this transaction. these matters, except the signing of the notes and the executing of the deeds of trust, which I I did myself, my husband represented me. don't remember the exact date when I gave my husband the check for the $1,000. It was at the time on deposit to my credit in the Third National Bank. My husband had no authority to draw upon my individual account. I am not in My husband is. I the real estate business. met Mr. Mersman when I signed the papers. Before that time I had not known him. I met If I rememMr. Van Raalte since that time. ber correctly, Mr. Mersman was present when I signed the papers. I don't remember whether my husband was present or not. I only met Mr. Mersman once in connection with this matter. I never had any conversation with him about how this property was to be handled or how I I don't know that I have was to purchase it. the check for the $1,000 I gave my husband which he paid as earnest money for the purchase of this land. I think I got the check back after it was cashed. I don't remember whether it was indorsed or not. I did not see my husband pay it out. I just gave him the money to invest for me. I know he paid it on the deal, because he got the tract in my name. He got an earnest money contract for me for the Forsyth tract from the Quality Realty Company. I am not certain whether this contract was in my name. I let Mr. Quinn act for me entirely through all that. I did not see the contract. Mr. Quinn attended to it. I was in the habit of giving him money and having him buy property for me. knew the details of the trade so far as my husband came home and told me about them. He told me about the investing of the money in the Forsyth deal. I bought the property for the purpose of reselling it. The property was not laid out in lots. It was subsequently sold after it had been subdivided. My husband was handling this tract for me during the greater part of the fall of 1909 and the spring of 1910. He attended to it for me. I did not give him any part of the profit or any part of the land. I never had any part of my property in his name. I never referred to any part of this property as I It was my own. belonging to him and me. signed a contract with the Title Guaranty Company involving this property. My husband signed it with me. I acquired the property I now I James Rohan, secretary of the Title Guaranty Trust Company, testified that his company paid respondent Van Raalte with a check of the American Trust Company, the principal and interest due on plaintiff's note; that the Title Guaranty Company repaid the American Company on the 1st of April, 1910, with a check against the account of the plaintiff; that his company had an interest in the plaintiff's account, but not in the money that was paid to respondent Van Raalte. A canceled check of the American Trust Company, dated the 28th of March, 1910, for the sum of $61,230, payable to and indorsed by respondent Van Raalte, was offered in evidence. The respondent Van Raalte testified that at the time he purchased plaintiff's note he knew nothing about the transaction between plaintiff and her husband on the one hand and the defendants Mersman and the Excelsior Company on the other; that Mersman told him he had a deal on, but did not tell, him the details; that he never knew or heard of James J. Quinn until about nine months after he became the owner of plaintiff's note; that he never knew and had never seen Mrs. Quinn until after this suit was brought; that before purchasing the note he examined the certificate of title and plaintiff's deeds of trust, and relied solely upon the certificate of title. The certificate of title was offered in evidence, and contains recitals to the effect that the plaintiff was the owner in fee of the Forsyth tract, subject to three deeds of trust, two for $50,000 each, and one for $60,000; that the third deed of trust was given "to secure part of purchase money, one note for $60,000, payable on or before six months after date, with interest from date at 6 per cent. per annum." James J. Quinn, plaintiff's husband, testified that about the 21st of May, 1909, he and Mersman called on Van Raalte, and discussed with the latter the proposition that Mersman and Van Raalte put up the money for the purchase of the land; that after discussing the matter with Van Raalte, the latter told him that the proposition would be all right and for him to go ahead and figure with Mersman. Van Raalte and Mersman deny Quinn's statements as to this interview. Mersman testified that before he sold respondent Van Raalte plaintiff's note he told him the facts relating to the execution of same. The evidence of respondent Van Raalte and Mersman shows that the former furnished one-half of the loan to the plaintiff. The respondent and Mersman testified that respondent loaned Mersman, without security, on the 25th day of May, 1909, $20,000, which Mersman repaid him on the 29th of May. Mersman also testified that he used this money in purchasing the Forsyth tract for the plaintiff. Respondent Van Raalte said that he did not know what Mersman was going to do or did with the money, and that Mersman did not tell him, and he did not ask him. Mersman was a man without a bank account at the time respondent loaned him $20,000 without security. Respondent, as shown by his testimony, bought the note from Mersman at the discount of $10,000, within less than two days after it was delivered to Mersman. Before respondent agreed to purchase the note he insisted that the Excelsior Realty Company indorse it, and that Mersman, who did not own the note, also indorse it personally, which he did. The transfer of the title to the land in question to Ralph W. Coale, as an agent or intermediary of the Excelsior Realty Company, is admitted by Judge Moses N. Sale, one of the counsel for the respondent, in a memorandum filed by him in support of the motion for a new trial. It is pertinent as illuminative of the purpose of the transaction. Judge Sale's statement is as follows: "I pause to say that there is not a single statement contained in that portion of the in struction (plaintiff's first) that has any bearing upon the real issue that should have been submitted to the jury, because it was admitted, so far as Mersman is concerned, that his intention and his agreement was to carry out a certain trade or contract whereby Quinn would get the title to the Forsyth tract," etc. "It must also be admitted, for we cannot dispute the fact, that it was the intention of Mersman and his company and the intention of Quinn to do what they had agreed to do, and that was to get the title to this Forsyth tract out of the Quality Realty Company into Quinn or his nominee. The transaction has no other color than this." "This portion of the instruction (plaintiff's first) is absolutely in the teeth of all the undisputed evidence, because the record evidence in the case shows it was the express purpose on the part of the Excelsior Realty Company and Mersman that Coale should become the ostensible purchaser of the property, but should purchase it in accordance with the terms of the contract that Mersman had made with Quinn, purchase it so that Mersman's company could control it, and purchase it for the purpose of getting the title in Quinn or his nominee." A contract between the Quinns, husband and wife, with the Title Guaranty Trust Company and the American Trust Company, which was in the possession of the former, and provided for the sale by auction of the Forsyth tract, was required by respondent to be produced and was read in evidence. Counsel for respondent admitted in demanding the admission in evidence of this contract, as is disclosed by its face, that plaintiff was the real party in interest in this transaction. The court gave the following instructions on behalf of the appellant: (1) "If the jury believe and find from the evidence in this case that on or about the 29th day of April, 1909, the plaintiff and the Quality Realty Company entered into the contract for the sale of the land described in said contract; and that the Excelsior Realty Company on or about the 25th day of May, 1909, at the instance and request of the plaintiff, paid to the Quality Realty Company the sum of $40,000, as part of the purchase price of said land; and that upon the payment of said $40,000 as aforesaid said Quality Realty Company, at the instance and request of the plaintiff and the Exinterest in said land to one Ralph W. Coale subcelsior Realty Company, conveyed its equity or ject to a then existing deed of trust on said land to secure the payment of $50,000, with inw. Coale, at the instance and request of the terest thereon, and that thereupon said Ralph plaintiff and the Excelsior Realty Company, and as a further consideration for said conveyance to him as aforesaid, executed and delivered of trust on said land, to secure the payment of to one John Boyle, as trustee, a second deed $50,000, with interest thereon, evidenced by negotiable promissory notes of said Coale, executed and delivered by him to said Quality Realty Company; and that thereafter, to wit, on the 27th day of May, 1909, said Ralph W. Coale, at the instance and request of plaintiff and the Excelsior Realty Company, conveyed said land, subject to said deed of trust, to plaintiff and that, upon receiving said conveyance of said land from said Coale, plaintiff executed and delivered to said Ralph W. Coale the note contained in plaintiff's Exhibit A, and also to secure said note contained in said exhibit plaintiff executed and delivered to said Coale a third deed of trust on said land, together with a deed of trust on other property of the plaintiff; and if the jury believe and find from the evidence that said conveyances by said Quality Realty Company to said Coale and said Coale to plaintiff, and the payment by the Excelsior Realty Company of said $40,000 to said Quality Realty Company, and the execution and delivery by plaintiff of her promissory note for $60,000 to Ralph W. Coale, and the deeds of trust to secure the same, were all had and done by plaintiff and the Excelsior Realty Company with the intent and purpose only of enabling the plaintiff to complete her purchase of said land from the Quality Realty Company; and that there was no purpose or intent, in any event, on the part of either of said parties to the transaction that the said Mersman and Excelsior Realty Company or either of them, either in their own name or in the name of some other person, should purchase said property; and that said Coale thereafter indorsed said note with the words, 'Without Recourse on Me,' and delivered the same to the Excelsior Realty Company, and that said Coale had no financial interest in said land or the purchase price thereof-then the court instructs you that said payment of said $40,000 by said Excelsior Realty Company to the owners of said land, as aforesaid, was a loan to the plaintiff, for the use of which the Excelsior Realty Company could not legally charge plaintiff more than eight per cent. per annum ; "And if the jury believe and find from the evidence that on or about the 29th day of May, 1909, said note of plaintiff for $60,000 was purchased by Simon Van Raalte, and that on or about the 28th day of March, 1910, plaintiff paid or caused to be paid to said Van Raalte the principal of said note, to wit, the sum of $60,000, and that plaintiff either paid or caused to be paid to said Van Raalte the sum of $3,000 as interest on said note, then your verdict in this case should be against defendant Simon Van Raalte in the sum of $21,000, provided you further find that said Van Raalte, before buying said note, had actual knowledge of the fact that said note was given by the plaintiff for the loan of only $40,000 (if you find that the transaction between the original parties constituted a loan under the prior part of this instruction)." 2. "The court instructs the jury that it has ruled that there can be no recovery by plaintiff against defendant Mersman and Excelsior Realty Company, and that as to said defendants plaintiff has taken a nonsuit. The court instructs you that you should not from this action of the court draw any inference, either one way or the other, as to the liability or nonliability of the defendant Van Raalte, but as to the defendant Van Raalte the court submits the case to you upon the other instructions given you." The court gave the following instruction on behalf of respondent: if you find plaintiff has failed by the preponderance of the evidence to establish that Van Raalte purchased with actual knowledge that the said note was executed for a forty thousand dollar loan, then your verdict must be in favor of the defendant Van Raalte and against the plaintiff on the second count of this petition." On its own motion the court gave instructions as to the credibility of witnesses and a numerical verdict. I. The motion for a new trial was sustained, as specified by the trial court, for the following reasons: fendant to show that James J. and not Margaret (1) "The exclusion of evidence offered by deA. Quinn was the real party in interest.". (2) "Error in the giving of instructions." The respondents, as well as the appellant, have filed an abstract herein. Except to impose upon the court the necessity of added labor in the examination of the facts, there the record. In the examination we have felt is no reason apparent for this duplication of impelled to make of these abstracts, we find that each presents the controverted matters at issue. [1-3] Instead of the trial court erring in the exclusion of the testimony, it was exceedingly liberal in permitting its introduction. Much of the record is taken up with discus sions of counsel as to the character and extent of testimony to prove the absence of plaintiff's interest in the matter at issue. Whether the testimony thus discussed was oral or documentary, we have searched the record for evidence of direct offers of same, which would have enabled the trial court to rule intelligently thereon, and the respondent to preserve and submit exceptions to such rulings. In order to preserve an available objection to the exclusion of testimony, its of fer must be made at the time. If documentary, the instrument itself should be offered; if oral, the court should be informed as to the evidence proposed to be given by the witness. Where there is nothing to indicate whether a ruling in regard to testimony will affect the merits of the case, we should not interfere. In the absence of any evidence of error none will be presumed. To interfere with a judgment regularly entered, in order that a rehearing may be had upon a mere "The court instructs the jury that unless you believe from the evidence that the transaction, if any, between the plaintiff and defendant Ex-general statement of errors, in the absence of celsior Realty Company, was a loan of money by said Realty Company to the plaintiff, plaintiff is not entitled to recover against the defendant Van Raalte on the second count of her petition. "The court instructs the jury that in the second count of the petition plaintiff admits that her original transaction in relation to the sixty thousand dollar note described in evidence was with defendant Mersman and Excelsior Realty Company, and not with defendant Van Raalte, but that plaintiff seeks by said count to hold defendant Van Raalte liable on the ground that he purchased said note with actual knowledge that it was executed in consideration of a loan of forty thousand dollars. The court instructs you that the burden of proof is upon plaintiff to establish such actual knowledge on the part of Van Raalte by the preponderance of the evidence. The court therefore instructs you that 205 S.W.-5 some showing as to their materiality, would, as we said, in substance in Powell v. Railroad, 255 Mo. loc. cit. 446, 164 S. W. 636, “be a hazardous and foolhardy thing. When the case goes below under such circumstances, the evidence elicited at the trial on the same question may turn out to be worth nothing, whereby justice will suffer from our action and the courts be brought into reproach.” Especially is this true where the testimony, if admitted, would have been insufficient to establish the defense relied on. Leland, 82 Mo. loc. cit. 265. Farwell v. As illustrative of the correctness of this conclusion, it is only necessary to state somewhat in detail the rulings of the trial court in regard to the testimony to which defend- therefore simply in the nature of a repetition. ants preserve exceptions. On cross-examination plaintiff was asked if the sale, referring to that of the Forsyth tract, was not worked up very effectively. Plaintiff's objection to this inquiry was sustained, and the defendants excepted. No suggestion was made as to what answer was expected, nor any intimation given as to its materiality. An affirmative answer, if permitted to have been given, would have thrown no light on the subject. Plaintiff was asked: "What do you say in connection with your household expenses; your husband has no money, has he? He has not a cent, has he? Don't you know he has not got a dollar? Did you ever hear of the case of Carson v. Quinn, and a judgment against him for $2,500?" The plaintiff's objection to these inquiries was sustained. This character of examination, evidently for the purpose of showing the impecunious condition of the plaintiff's husband, was but a repetition of other examinations of witnesses in which like questions were propounded and answered, not necessary to be detailed here, because the defendants received whatever benefit might accrue from the facts elicited, and hence could not claim error because of the refusal of the trial court to permit a repetition of the same. On further cross-examination, plaintiff was asked if she did not own the Forsyth tract, and answered, "Yes." The further inquiry was made as to whether this was not true as to all property that stood in her name. Plaintiff's objection to this inquiry was sustained. The materiality of this testimony does not appear on its face, and no suggestion was made as to the answer expected. The only other property the plaintiff had in her name was that on Laclede avenue and Ninth and Morgan streets. Proceeding in this same line of cross-examination, the plaintiff was asked whether or not her husband had not received from her the proceeds of the sale of the property when it was made. Plaintiff's objection to this inquiry was sustained, but no suggestion was made of any character to determine what the answer might be. It had already been testified by the plaintiff that her husband had no interest in the Forsyth tract, and that he drew no money for her which had been deposited in the Trust Company, admitted to have held all the proceeds arising from the sale of the property. James Quinn, the husband of the plaintiff, on cross-examination was asked: "Did you tell Mersman you wanted this title taken in your wife's name because there was a fellow who was going to get judgment against you or had judgment against you?" The sustaining of an objection to this testimony was proper. The only ground on which it was sought to introduce it was to affect the credibility of the witness. The same inquiry had been made of him and answered in different language, and the testimony excluded was Mersman had stated in his cross-examination what the plaintiff's husband had said to him in this regard, and it had not been attempted to question this statement, whatever evidentiary effect it may have had, other than by Mersman himself, who stated that "Quinn never told him that he was carrying property in his wife's name, and he explained to him why the transaction was made in the manner it was." Further effort was made by defendants to have plaintiff's husband testify concerning transactions occurring about six years before the transfer of the Forsyth tract. These inquiries are not in the record, and it is impossible to determine their nature. There is therefore no such preservation of the alleged error as to authorize our interference. Many other inquiries were made by counsel for defendants which were excluded by the court. They were all intended to emphasize the alleged indigent condition of the plaintiff's husband or to affect his credibility. Except by remote inference the materiality of this character of testimony is, under the facts in this case, doubtful. Much other testimony of like nature having been admitted, the defendants were not deprived of whatever probative force it had. There is therefore no substantial ground for complaint on this account. In regard to the exceptions preserved to the proposed offers of documentary evidence, it is sufficient to say that not a single one of these papers was actually offered in evidence and excluded. The rulings thereon cannot constitute such error as we are authorized to review. [4] II. In sustaining the motion for a new trial, the court held further that it erred in not giving an instruction embodying the following: "If the jury find that Mersman and the Excelsior Realty Company intended to advance property, whether Quinn elected to purchase it the $40,000 necessary to acquire title to the or not, and that Quinn should in truth and in fact have five days' time within which to determine whether or not he would repurchase the property, and that he was in fact allowed that time although he may not have availed himself of it, then the transaction did not constitute a loan, and the jury should so find." In the discussion as to the propriety of this proposed instruction, it is well to review in outline the facts in the case. Plaintiff had a contract for the purchase of the Forsyth tract with the Quality Realty Company, the agent of the owner, whereby she obligated herself to purchase the tract within 30 days. While this contract was in force, the Excelsior Realty Company under an agreement with plaintiff's husband, paid the owner of said tract $40,000 on the purchase price of same, in conformity with plaintiff's contract. Contemporaneously with this payment, the title was vested in the plaintiff. A conduit, Ralph W. Coale, was employed in the transfer, he taking the title from the after plaintiff had acquired title to the property, the giving of the proposed instruction would clearly have been error in authorizing the jury to act upon an assumption of power in Mersman and the Excelsior Realty Company which had ceased to exist. The trial court held affirmatively that the instructions given correctly stated the law applicable under the facts, except as to the hypothesis concerning the effect of the alleged contract of plaintiff's husband with Coale. This we have disposed of by showing that it could not properly be considered as a determining factor in the case. owner and transferring same to plaintiff., proper by the trial court was not made until Coale had no interest in the transaction other than as an intermediary. It is not otherwise contended; on the contrary, it is conceded by respondent that Coale was acting "for the convenience of Mersman and Quinn." Proof of these facts is almost entirely documentary. It consists of plaintiff's contract of purchase of the land; the Excelsior Realty Company's check for $40,000, paid to the owner of the land; the deed from the owner to Coale, the conduit; the deed from Coale to the plaintiff; the note of plaintiff for $60,000 to Coale, indorsed by the latter without recourse upon its delivery to the Excelsior Realty Company; the receipt of the Excelsior Realty [5] Respondent contends, however, that Company showing the payment of the $40,000 plaintiff's instruction numbered 1, as given, to the owner of the land, and that the title was erroneous. Every fact in this instruction was to pass through Coale to plaintiff, and relating to a loan, or whether or not the that this money was not to be paid to the transaction constituted a loan, was admitted owner of the land until the plaintiff's note by respondent. The only fact not admitted and deed of trust had been delivered to the was as to whether the transfers from the Title Guaranty Trust Company. The date of Quality Realty Company to plaintiff, through all of these transactions was May 25, 1909, Coale, and the payment of the money by and the payment of the money and the pass- Mersman to the Quality Company, were had ing of the title to plaintiff was simultaneous. and done with the intent and purpose only of These instruments, where required to be re-enabling the plaintiff to complete her purcorded, were filed chronologically in the or- chase of the land, and that there was no purder of their execution, as if, which was pose or intent on the part of either of the doubtless true, their manual delivery to the parties that the said Mersman and the Exrecorder was by the same person. celsior Realty Company should purchase said property. No tenable objection can be urged to this portion of the instruction. It clearly and fairly presents the issue in regard to this phase of the transaction which, if found to exist, as hypothesized therein, renders the transaction a loan, which is best defined in Freeman v. Brittin, 17 N. J. Law, 191, as follows: "It is not necessary, in order to constitute a loan, that there should be in very terms an application to borrow or an agreement to lend. Every advancement of money for the accommodation of another, to be repaid to the person making the advance by the person receiving it, or by any person for him, or by or out of his funds, is literally and legally a loan of money." This definition is concretely applied in the last paragraph of this instruction, and, after a statement of all the pertinent facts necessary to the guidance of the jury, they are All of this proof lends color to no other reasonable conclusion than that the purpose of this entire transaction was to vest title to the property in the plaintiff, and that it was never the intention of Mersman and the Excelsior Realty Company to acquire the title whether the plaintiff's husband elected to purchase it under the terms of his contract with Coale or not. As the documents show, the property was purchased under and in accordance with plaintiff's contract; the transfers made in relation thereto, being simultaneous, indicated one transaction; the deed to Coale was, as is admitted, a mere convenience; the contract of plaintiff's husband with Coale was made May 27, 1909, two days after the deed from Coale to plaintiff had been made and executed and the title to the land had vested in the plaintiff. Mersman testified that he had bought this property told that a recovery cannot be had unless for the plaintiff at her husband's request, from which the legitimate conclusion follows that the $40,000 paid to the owners of the land was for plaintiff. Further than this, it The instruction covers the whole case and was conceded by counsel for respondent in negatively embraces all of the legitimate legal the argument, in support of the motion for a defenses. This is all that is required. Enloe new trial, that it was never the intention of v. Foundry Co., 240 Mo. loc. cit. 449, 144 S. Mersman and the Excelsior Realty Company W. 852. If in this case an instruction had to acquire title to the property. Judge Sale's purported to cover the whole case and had iglanguage in this regard we have set out at nored legal defenses, it would have been erlength in the statement. When the evidence roneous. This is not the case, however. After conclusively shows, therefore, as it does here, stating hypothetically the facts which will that the $40,000 was advanced to acquire the sustain defendants' liability, such other coproperty for the plaintiff, and the further fact existent facts, which show no liability, are appears that the contract upon which it is sufficiently stated. The effect of the instrucsought to base the instruction claimed to be tions, therefore, not only those given on be they find that the transaction between the Excelsior Realty Company and the plaintiff was a loan. |