Singer Manufacturing Co. v. Givens

Smith, P. J.

This was a suit on a bond made to plaintiff by Givens and his co-defendants, conditioned upon the faithful performance of his duties a,s agent for plaintiff, as specified in agreements which “he has or may hereafter make with plaintiff, and for the payment to the company of all moneys, notes, leases, etc., which he, as agent of said company, may hereafter collect, or receive, or obtain, and pay to the said company all indebtedness which is now or may hereafter become due and owing by him to the said company.”

The petition sets out the breaches by averring an indebtedness of $233.12, as due said company by Givens prior to the execution of the bond, and an indebtedness of $532.40, accruing after the execution of the bond, making a total of $765.52, with credits of $357.37, leaving a balance of $408.05, for which plaintiff asks judgment, to be satisfied by the penalty of the bond ($300).

The defendants, by separate answers, — the principal by one, and the sureties by another, — admit the execution of the bond, but deny all other allegations of the bond, generally and specially.; the principal also setting-up representations by an alleged agent of plaintiff, that Givens was not indebted to the company at the time, and also setting up a counter-claim, and the sureties denying that the money alleged to be due prior to the execution of the bond, even if due, was an obligation upon them.

*607 But the suretiés set up no representations of plaintiff’s agent as defense.

The plaintiff filed a replication to the answers and the court referred the case to an attorney who heard the evidence and subsequently filed a report, to which the defendants filed exceptions, which are quite lengthy and need not be here set forth. The court overruled the defendant’s exceptions to the report of the referee and thereupon the defendants who were sureties asked leave to file a second amended answer, setting up that they had been induced to sign said bond by the false and fraudulent representations of the plaintiff, which the court refused to permit.

The defendants asked several instructions but as no point is made in their brief in respect to them, there is no occasion for setting them forth here.

The circuit court rendered judgment against defendants who after unsuccessfully endeavoring by motion to set the same aside took their appeal here.

I. The main ground upon which defendants prosecute their appeal is that the circuit court committed error in refusing them permission to file an amended answer.

It will be remembered that although the facts which defendants desired to plead in their proposed amendment were within their knowledge from the very inception of the case, they neglected to interpose them by answer until after they had filed two answers, upon the last of which they went to trial, and until after the filing of the report of the referee and the overruling of the exceptions thereto. The evidence, too, was then closed and the plaintiff at that time could not have had an opportunity to rebut the evidence which would have been relevant under the proposed amended answer. The proposal to file such amendment was certainly untimely. Carr v. Moss, 87 Mo. 447 .

*608 It seems to us that the negligence of the defendants in this regard was such as ought properly enough to have precluded them from successfully invoking the favorable exercise of the discretionary power of the circuit court in their behalf. With the exercise of this power we will not interfere unless satisfied of gross abuse. R. S., sec. 3586; Ensworth v. Barton, 67 Mo. 622 ; Charvin v. Lownes, 23 Mo. 227 .

The amendment proposed involved a substantial change of the defense of defendants.

And while the statute is very broad and comprehensive in its provisions authorizing courts to allow amendments of pleading to be made in furtherance of justice, it is always upon the expressed condition that the amendment does not change substantially the claim of defense. R. S., secs. 3566, 3567.

The trial courts have been frequently admonished to confine the exercise of this power within the statutory limits just mentioned. Irwin v. Chiles, 28 Mo. 576 ; Kerr v. Bell, 44 Mo. 120 ; Newman v. Kenton, 79 Mo. 385 ; Butcher v. Death, 15 Mo. 271 ; Carr v. Moss, 87 Mo. 447 .

Under the peculiar facts and circumstances of this case we do not feel authorized to interfere with the discretion exercised by the court in denying to the defendants permission to file their amended answer. We are not satisfied that there was any abuse of the court’s power in this respect.

II. The defendants further contend that the referee having reported the evidence taken by him that this court can review it and correct his findings. We do not think this court has any such power in a case of this kind.

In actions at law the report of the referee is equivalent to a special verdict. And while this court cannot interfere with a verdict where there is any evidence to support it, the trial court is invested with a large *609 discretion in that behalf and may award a new trial on the ground that the verdict, is against the evidence. The same rule applies to the report of a referee in actions at law. In Clark v. Phillips ( decided by the supreme court and not yet reported), it was said: “ This being a law case the special judge exceeded his powers in setting aside the report of the referee. He had the power, doubtless, to set it aside altogether if dissatisfied with it just as he could the verdict of a jury, but he had no more power to amend the finding of the referee than to amend the verdict of a jury.” This case is in line with many others in this respect. Caruth-Byrnes Hard. Co. v. Wolter, 91 Mo. 484 ; State ex rel. v. Hurlston, 92 Mo. 827 ; Gamble v. Gibson, 84 Mo. 406 ; Father Matthews Society v. Fitzwilliams, 84 Mo. 406 ; Franz v. Deitrick, 49 Mo. 95 ; Prendergast v. Eyermann, 16 Mo. App. 387 ; Kennard v. Peck, 19 Mo. App. 343 ; McGinness v. Mitchell, 21 Mo. App. 493 .

Where there is any evidence to sustain it we will suppose that the whole evidence was properly weighed aud the requisite effect given to it. Western v. Kubben, 48 Mo. 95 ; Gunbel v. Pignero, 62 Mo. 240 .

The defendants’ abridgment of the record does not purport to set forth the substance of all the evidence. The plaintiff in its counter abstract has set out much evidence which defendants seem to have entirely omitted from their abstract and we cannot tell whether both of these contain the substance of all the evidence adduced in the case. Neither of them state such to be the fact.

If a party desires us to review the evidence in an action of this sort with a view of determining whether the finding of the referee -is against it, he should present an abstract setting forth the substance of all or so much thereof as is material.

In a case like this, where the abstract is meager and does not state that it contains the substance of all the *610 evidence we cannot undertake to examine it further than to see that there is some substantial evidence to support the finding, and as already stated we will suppose the referee properly weighed the whole evidence and gave to it the requisite effect. The burden is upon the defendant to establish the allegations upon which his exceptions rest. Ranson v. Hall, 56 Maine, 142.

The defendant’s exceptions that the finding of the referee was against the law and against the evidence are exceedingly general. They do not inform the court in what respect the finding is against the law, nor in what respect it is not supported by the evidence. It was necessary that these matters should have been especially pointed out. This not having been done, the exceptions must be disregarded. Wiggins Ferry Co. v. Railroad, 73 Mo. 389 ; Underhill v. Pomeroy, 6 Hill, 603 ; Ward v. Craig, 87 N. Y. 550 .

It is true that under the exception that the “finding of the referee is against the law,” the specification is made that the referee found that the defendant Kyle was induced to sign said bond by the false and fraudulent representations of plaintiff.

While this finding was not responsive to the pleadings and was unauthorized, yet as it did not affect the sustantial rights of the parties, the trial court very properly disregarded it. . R. S., sec. 3569. The objection that the witness McIntyre was permitted to testify from a sheet he claimed to have transcribed from the books of plaintiff does not seem well grounded, in the light of the plaintiff’s counter abstract, the correctness of which is not controverted, for it there is made to appear that this witness testified from exhibits filed in the case and from contracts, reports of sales and the stubs of receipt books, signed by the defendant Givens with whose signature witness was familiar. While owing to the manner in which the testimony of this witness is abstracted, it is not clear to us whether the *611 defendants’ objection was well taken or not, but however this may be, we are all of the opinion that it was cumulative evidence and granting that it was incompetent, there was the unchallenged testimony of several other witnesses which was ample and sufficient to establish the liability of the defendants and for this reason the defendants were not injured by it. St. L. Public School v. Risly's Heirs, 40 Mo. 356 .

Upon an examination of the whole case we have been unable to discover that the circuit court by any of its rulings committed error prejudicial to the defendants.

The other judges concurring,

the judgment of the circuit court is affirmed.