The opinion
DISSENTING OPINION BY JUDGE BIGGS.
I agree that the judgment ought to be reversed for the reason that the case was submitted and the recovery was had on a theory not warranted by the pleadings. The fifth instruction was drawn upon the theory that the money was paid to Brady as chairman of the Democratic City Central Committee, to be paid by him to the treasurer of the committee, and afterward used by the committee in the interest of the Democratic city ticket and the capital movement and the jury was told that Brady was not justified or protected in any other mode of disbursing the money and the judgment should be for the full amount. The fourth instruction proceeds upon the idea that the money was paid to Brady as an individual, and in that case the jury was instructed to return a verdict for the amount of the money which Brady had appropriated to his own use. Both instructions are right under the facts stated in each, but they present different and distinct rights of recovery. The legal obligations as to the mode and manner of the disposition of the fund under the two supposed agreements are essentially different. If the money was delivered to Brady as chairman of the committee, then under the corrupt practice act (Session Acts 1893, p. 162, sec. 118), it was his duty to pay it to the treasurer of the committee, and have it disbursed through him, and any other mode of disbursement was unlawful; whereas if the money was intrusted to him as an individual, no such duty was imposed. The jury gave Brady credit for the amounts paid by him to various ward workers, which shows that the jury determined the issues under the fourth instruction. This instruction was within the evidence, but it was outside of the *594 pleadings, and hence a finding under it can not be upheld. The fifth instruction was the correct charge under the petition. "Was there substantial evidence-to warrant the court in giving it as the only matter of difference between me and my associates? This question must be determined by the testimony of Mr. Yeater, the agent of the plaintiff. It appears from his testimony that upon his arrival in the city of St. Louis he had some tails with Edward Butler concerning the best use to make of the money, and that Butler advised him to place it in the hands of the defendant as chairman of the Democratic City Central Committee, and that at the suggestion of Butler he met defendant at Butler’s office. As to what was said and done at that meeting Mr. Yeater testified /as follows: “Well, I told Mr. Brady that I had talked with Butler on one or two occasions prior to that time about placing some money in his hands as chairman of the city committee, to be used jointly in the interest of the constitutional amendment providing for the change of the state capital, and for the benefit of the city committee. I told him that Mr. Butler, who had suggested in the first place that we use this money in this way, had told me that in order to obtain any efficient results we should contribute about $100 to each ward in the city. And he told me at the time that there were twenty-eight wards, and that I had told him that the board of trade had raised some money for the purpose of that campaign and did not have that amount of money to contribute. I told him also that Mr. Butler had finally agreed with me that if he, Mr. Brady, thought it proper that he, Brady, would take the sum of $1,400, or $50 a ward, and use it for the benefit of the constitutional amendment, and also for whatever benefit could be gained in the use of it for the city committee. I also told him that Mr. Butler had reported to me that Mr. Brady agreed to receive it and use it for that purpose, and I asked him if that was true. I asked him if it was satisfactory. He told me it was. I told him that I *595 either had drawn, or would draw a check for the amount and give it to Mr. Butler to be handed by Mr. Butler to him, and I asked him if that was satisfactory. He said it was perfectly satisfactory. * * * I remember that he (Brady) said the money would be used by dividing it up in the various wards of the city, about $50 to a ward, and that on the advice of some committeemen, possibly -the ward committeemen, * * * and at the same time they would do whatever they could properly in the interest of the city committee. * * * I told him (Brady) that I was giving him this money because he was chairman of the committee, and because he said he was favorable to this proposition, and ho said he would use it through the committee in the way I have just stated.” On the cross-examination of Mr. Yeater the following appears: “Q. To whom was he (Brady) to distribute the $1,4:00?” “A. To what person?” “Q. Yes.” “A. He didn’t — the name of no person was suggested.”. “Q. No name was suggested either was there?” “A. No, sir, no name suggested except that he would advise with the ward committeemen and select as many persons as possible in each ward so as to cover the precinct as nearly as possible in the distribution of the literature.” “Q. He was to give this money to different persons in the different wards ?” “A. Yes, sir, that was right, that was the first suggestion made by Colonel Butler.” I have set out all the testimony of Mr. Yeater hearing directly on his agreement with defendant.
To entitle the plaintiff to recover under its pleadings, it was necessary that it should produce substantial evidence that the money was paid to Brady as chairman of the Democratic City Central Committee, upon an agreement either express or implied that he was to pay it to the treasurer of the committee, and that it was to be expended for the purposes for which it was donated in conformity with the requirements of the statute. In determining this question the court is required to draw every reasonable inference of fact *596 in favor of the plaintiff,' that is every fact must be determined in its favor, though proved in bnt a slight degree. This rule of practice has been so often declared that it is useless to cite the cases. Now, Mr. Yeater expressly states that he paid the money to Brady as chairman of the committee under an agreement that it was to be used through the committee. The just and reasonable inference from this statement is, that the money was to be used through the committee in the usual way — that is that it was to be paid to the treasurer and afterward disbursed by him under the orders of the committee. This view of the evidence sustains plaintiff’s case and tends to show that the arrangement between Yeater and Brady was not in violation of the statute, but in conformity to it. The other portions of Mr. Yeater’s examination by no means destroy the above statement. In his cross-examination he only speaks of the persons to whom Brady proposed to pay the money, and through whom he expected to accomplish good results for the removal of the capital. All of this Brady could do in the usual and lawful way, and there is nothing in the. testimony of Yeater tending to prove that unlawful or unusual means were to be resorted to. Hence I think it quite clear that the evidence was sufficient to sustain plaintiff’s cause of action, and for this reason I can not consent to a simple reversal of the judgment. The cause ought to be remanded for another trial.