Holton v. Stroud , 88 Mo. App. 112 ( 1901 )

BOND, J.

There was abundant testimony tending to support the finding of facts made by the trial court on the submission of this case. The only question of difficulty presented by the appeal is the contention now made, that it appeared from some of the documentary evidence introduced by respondent on the trial, that appellant had terminated his relationship as principal with the agent who contracted with respondent, prior to the breach of the contract, for which this suit was brought. Whatever force should be attached to this fact, appellant has .debarred himself by his conduct on the trial from invoking it as a defense to the present action. Not only did appellant omit to set up in'avoidance of respondent’s demand by his pleadings, but when the trial court called upon his attorney, and the attorney for respondent, to state the issues and their relative positions, the answer given was in substance that the defense was confined to the traverse of the proposition that the contract in suit was made by one Marshall, acting as agent of his undisclosed principal, appellant, this being the limit of the defense made on the trial. The mere fact that respondent, while introducing documentary evidence of the contract between appellant and Marshall to establish the relationship of principal and agent between them, put in, also, a separate statement or attached paper which tended to show a cessation of the agency before the breach of the contract, should not be a ground of reversal in this court. Eor, if appellant had not confined its defense in the lower court to the single issue of a denial of agency on its behalf in the making of the contract, the learned counsel for respondent would doubtless have been more guarded in the introduction of his evidence, nor would the trial court have been misled as to the scope of the issues presented to it for decision. Bensieck v. Cook, 110 Mo. l. c. 182.

Under the peculiar circumstances of this record, appellant is not entitled to “change front” in this court and secure a reversal of the judgment upon the probative effect of collateral evidence, most likely inadvertently brought into the case, and which respondent should have had an opportunity to explain or controvert in the lower court, if appellant intended to base any defense thereon. A careful examination of the record-in this case, indicates that the judgment is for the right party,. It is, therefore, affirmed.

All concur.