North v. Stevenson , 71 Mo. App. 427 ( 1897 )

Bond, J.

The first count of the petition alleges that in 1893 the defendant and others sold the Kansas City, Fort Smith & Southern Railway to the Missouri Coal and Construction Company; that as a part of said bargain defendant agreed with the purchaser to perfect the title to the right of way of said railway in Jasper, Newton and McDonald counties, Missouri, and in Benton county, Arkansas; that in May, 1893, defendant employed plaintiff, who is an attorney, to perform these services, agreeing to pay him well for such work; that in the discharge of his duties in this employment plaintiff devoted the whole of 1893 and that part of 1894 ending February 28, giving almost his entire time to said matters, and paid out on defendant’s behalf large sums of money, amounting to $1,255; that by deceit and fraud defendant procured from plaintiff a receipt in full for all of said sum, except $304.85 (expended by plaintiff) in consideration of a payment to plaintiff of only $250. A cancellation of this receipt is asked.

The second count of the petition asked judgment for the $1,255.

The third count prays judgment for the $304.85.

The answer denies that, defendant individually employed plaintiff, and avers that whatever employment was had was made by defendant in his capacity as president of the railway. It avers further that plaintiff has no cause of action against defendant individually. It then denies the services rendered by plaintiff were worth the amount claimed, and sets up the above mentioned receipt given by plaintiff, as a complete bar to his recovery. The reply states that defendant never disclosed the agency claimed in his answer when plaintiff was employed, but assumed to act in that matter in his own behalf. Plaintiff elected to try first the equitable count in his petition. The court found the issues on that count in favor of plaintiff and decreed a cancellation of the receipt. Thereafter the second and third counts were submitted to a jury, and a verdict rendered in plaintiff’s favor on both. Defendant appealed.

R?Stfor cancel-evidence.'fraud: Rfo”amDen”menutse w¡tchrai°e.mity It is conceded in the reply brief filed by appellant, that the judgment on the third count should be affirmed. The only question, therefore, which remains is as to the correctness of the finding on the first and second counts. The matters. for which a recovery is sought in the second count were embraced in the receipt sought to be cancelled in the first count. If, therefore, the court erred, under this record, in decreeing a cancellation of that' receipt, the judgment on these counts can not stand. The facts upon which plaintiff bases.his right to set aside the receipt executed by him do not tend to show that he had no contracting mind at the time he gave the receipt, nor do they tend to prove that he signed it when he supposed he was signing a different paper or instrument. Therefore under the rule laid down by a majority of the supreme court the contract evidenced by such receipt was merely voidable, not void, and to set it aside it was essential that a suit in equity should be brought for that purpose, in which it should appear that the amount received under the receipt had' been returned or tendered the defendant. Och v. Railway, ISO Mo. 27. As there was no evidence in this case of such a return or tender of the consideration, the decree of the court cancelling the receipt can not be sustained under the authority of the ease last cited. This necessitates a reversal of the judgment on the first and second counts. Respondent insists that the cause should be remanded, in order to permit an amendment of his cause of action on the first count in conformity with this rule. Appellant objects to this on the ground that the respondent’s testimony disclosed he did not tender the return of the consideration of sai¿l receipt. It does not follow that appellant may not have refused to accept a return, or that appellant may not have consented to the application of said sum to some other indebtedness existing between himself and respondent. Moreover respondent may file an amended petition tendering a return of the consideration. Cleary v. Mun. Electric Light Co., 19 N. Y. Supp. 951. The judgment of the lower court on the third count is affirmed. Its judgment on the first and second counts is reversed and the cause remanded.

Judge Bland concurs; Judge Biggs dissents.