Opinion
No. 7082.
October 27, 1952.
APPEAL FROM THE HOWELL COUNTY CIRCUIT COURT, HOWELL COUNTY, GORDON DORRIS, J.
Theo. G. Scott, of Buffalo, for appellant.
Robert L. Hyder, of West Plains, for respondent.
This was a suit by plaintiff, (now respondent) against defendant (now appellant) for $600 on a check, alleged to have been issued to plaintiff by defendant as a commission on a contract for the sale of lands near West Plains, Missouri, belonging to Mrs. Everett Talley, the widow of Everett Talley, then lately deceased. Such lands had previously been placed by Mrs. Talley in the hands of plaintiff for sale as a real estate agent.
The case was tried on October 24, 1951, before a jury in the Circuit Court of Howell County, and its verdict was for defendant. Before that time, plaintiff had unsuccessfully moved the trial court for a judgment in his favor on the pleadings. As the motion was not briefed or argued in this Court and the jury subsequently rendered a verdict in favor of defendant, we will not consider whether or not such motion was proper.
Plaintiff filed a timely motion for a new trial, which was overruled. On November 15, 1951, plaintiff filed an amended and supplemental motion for a new trial. Thereafter, the trial court made the following order:
"The Court being of the opinion that a misstatement of facts was given and a mistake has been committed by witness, Ethel Talley, and that such was on a material fact in issue the Court does set aside the verdict herein and orders said cause retried."
The defendant thereupon appealed to this Court.
It is the contention of plaintiff that the trial court had the right, within a certain time, to set aside any judgment in its court on its own motion, even if it is conceded that it could not then have sustained plaintiff's amended and supplemental motion for a new trial.
A careful study of the order of the trial court, after plaintiff had filed his amended and supplemental motion for a new trial on November 15, 1951, reveals the fact that the trial court was acting on its own motion and not upon the amended and supplemental motion of plaintiff for a new trial. Such motion was not even mentioned in such order.
Even if the trial judge was acting on his own information, and not upon the information set out in the amended and supplemental motion for a new trial, we are of the opinion that there was nothing in the affidavit of Mrs. Talley, filed with plaintiff's amended and supplemental motion for a new trial, and considered by the trial judge, which even contradicted the testimony of plaintiff himself.
Such testimony appears on the cross-examination of plaintiff, as shown on pages 7 and 8 of the transcript, as follows:
"Q. Mrs. Talley had the farm listed with you did she not? A. Yes, sir.
"Q. And listed just like anybody else would? A. Yes, sir.
"Q. And when she listed it with you she was to pay the commission if you sold it? A. Yes, sir, she was supposed to pay the commission.
"Q. Did you show the farm to Mr. Luckey by virtue of the listing made by Mrs. Talley? A. I showed him the farm.
"Q. Under the listing of Mrs. Talley? A. Yes, sir.
"Q. You did that because Mrs. Talley listed the farm with you for sale? A. Yes, sir."
Plaintiff's counsel admitted that the transcript furnished us by defendant was a "true and correct transcript on appeal," and plaintiff's testimony was as stated in such transcript. The jury was therefore justified in finding a verdict for defendant on plaintiff's testimony alone, regardless of the testimony of Mrs. Talley.
The evidence tended to show that defendant gave his check for $600 to plaintiff and that the check was subsequently destroyed and never paid to plaintiff. The check was doubtless turned over to Mrs. Talley as part of the escrow and was afterwards destroyed when the sale of the lands was disapproved by the Probate Court of Howell County, as the evidence tended to show.
There was nothing in the affidavit of Mrs. Talley, examined by the trial judge, which contradicted in any particular the testimony of plaintiff himself. Therefore, the jury was manifestly justified in returning a verdict in defendant's favor.
The order granting a new trial to plaintiff should not have been made, under the circumstances, and the trial court should now be directed to reinstate the judgment for defendant rendered on the jury's verdict.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.