text:
    Riggs et al., Respondents, vs. Myers et al., Appellants.
    1. A will described land devised as the “ south-east and south-west quarters of section 4. in township 60, range 38, in Holt county, Missouri.” The devisee of the south-west quarter was to have access to the “ Big Spring.” Held, parol evidence that the corresponding quarter sections of township fifty-nine, in the same range and county, were intended to he devised, was admissible, it appearing that the “Big Spring” was upon the south-east quarter of section 4, in township fifty-nine, and that the testator never owned or claimed any land in section 4 of township 60.

      •Appeal from Holl Circuit Court.

    This was a suit brought by a portion of the heirs at law orT George Stewart, deceased, for a partition of the south-east andi south-west quarters of section four, in township fifty-nineJ range thirty-eight, in Holt county, Missouri,^ to which the said George Stewart was alleged to have died intestate. The defendantsftlaimed that George Stewart, by his last will, devised the whojn of said land to Mary, James and George W. Stewart, from whom they had purchased.
    The only provisions in the will of George Stewart material to this case are the following :
    1. It is n3^ will and, desire that all my just debts and the expenses of my last illness bo first promptly paid, and the residue of my estate be divided as hereinafter mentioned.
    2. To my wife, Mary Stewart, I give the entire use and enjoyment of the south-west Quarter of section four and the south-east quarter of section four, in township sixty, of range thirty-eight, lying in Holt county, Missouri, during her natural life, to have and to hold the same, and at her decease, to pass as hereinafter mentioned.
    11. To my son, George W. Stewart, I give, at the decease of my wife, Mary Stewart, the south-west quarter of section four, in township sixty, of range thirty-eight, in Holt county, Missouri, with the privilege of using the water of the “ BigA Spring,” having free access to and from it, as he may wishi*

      12. To James Stewart, I give the south-east quarter of section four, in township sixty, of range thirty-eight, in Holt county, Missouri, to have the same at the decease of my wife, Mary.
    In addition to the above, there was a devise to Robert S. Stev/art, of a quarter section of land upon which he lived, and a small pecuniary legacy to several of the testator’s children and grand children. These were all the provisions of the will.
    The defendants in their answer alleged that the draftsman of the will used the word “sixty” by mistake, instead of “ fifty - nine,” in the number of the township. At the trial, the de.fendants offered to prove that George Stewart, at the time of "his death, owned no other land than the two quarter sections described in the petition and the quarter section devised to Robert S. Stewart; that he never owned or claimed any land •in section fouiüf township sixty ; that there was no such land as the south-east and south-west quarters of section four, in township sixty, it being a fractional section, coiftaining less than one hundred acres, and not subdivided injg> quarter sec-, tions ; that the spring, commonly known as the •“ Big Spring,”! was located upon the south-east quarter of section four, in] township fifty-nine, range thirty-eight; that George Stewart -died upon said last named section ; that his soiH, George W. and James Stewart, always resided with him, and that his other ■children lived apart from him for many years before his death ; and that the two quarter sections of land in controversy composed at least three-fourths in v*alue of his whole estate.
    All this evidence was excluded, and after a judgment of partition, the defendants appealed to this court.

      W. P. Hall, for appellants.
    The court erred in excluding the evidence offered by the defendants. In order to ascertain ¡the testator’s intention, we must look at the whole will, and .must also inquire into all the circumstances which surrounded him when he made his will. Parol evidence as to the nature, #marks, qualities, &c., of the subject devised is always admissible. (1 Greenl. Ev. §286-T, 289. Smith v. Bell, 6 Pet. 74. 13 Pet. 89. 7 Met. 205, 208, 209. 7 Met. 418. 2 Starkie’s Ev. 758, 768-9, 770, 1268. Wigram on Ev. §9,17, 61, 62, 64, 67, 70, 76,105, 180.) The evidence was admissible under tbe rule, “falsa descriptio non nocet, cum de corpore con-stat.” After rejecting the name of the township, enough remains in the will to show the property intended to be devised. ' (2 Yernon, 593. 1 Yesey, sr., 254. 1 Yesey, jr., 259. 3 Yesey, jr., 306. 3 Watts, 391. 2 Greenleaf’s Rep. 325. 9 N. Hamp. 58. 4 Mass. 205. 6 Johns. Ch. R. 607. 2 Dana, 49. 22 Wend. 150. 21 Wend. 653. 19 Johns. 449. 1 Wend. 548. 1 Richardson, 140. 2 Story, 286. 5 Greenl. Rep. 325. 2 N. Hamp. 285. 7 Yermont, 511. 13 Maine, 114. 8 East, 160. 1 Greenl. Ev. §301. 5 N. Hamp. 58.< 22 Pick. 410. 4 Metcalf, 84. 2 Starkie’s Ev. 770.) The evidence was admissible under the rule that parol evidence is admissible to explain a latent ambiguity. Tfee description in the will applies to no object in every particular, but in some particulars it applies to one object, and in some to another. (1 Phill. Ev. 531, 532, 533'. 6 Peters, 345. 9 Howard, 484. 5 Mees. & Weis. 363, 867. 5 Eng. Com. Law Rep. 408. 1 Johns. Oh. Rep. 190. 3 Taunton, 155. 2 Russ. & Mylne, 232. 3 Halstead, 72. Wigram on Ev. §184,186.)
    Mr. Vories, for respondents.
    The evidence offered by the defendants was properly excluded. The intention of the testator is to govern, but it must be gathered from the words used by him in his will, and effect must be given to every clause and word in the will. Parol evidence is never admissible to show that he intended to devise a particular thing, and by mistake devised a different thing. This would be to repeal the statute concerning wills. (1 Johns. Oh. Rep. 231. 7 Monroe, 629. 2 A. K. Marsh. 51. Davis v. Davis, 8 Mo. Rep. 56. 4 Dessaus. 215. 7 Metcalf, 188. 1 Paige’s Oh. Rep. 291. Roberts on Frauds, 15.) Parol evidence is only admissible in the case of a latent ambiguity or a false description. In the first case, it neither takes from nor adds to the words of the will, but points out the person or thing to which those words apply. (11 Johns. Rep. 215. 7 Metcalf, 185. 4 Yesey Ch. Rep. 675. 1 Story’s Eq. §179. 10 Bacon’s Abridg. (Wills, G.) Talbot’s Cases, 240. 1 Greenl. Ev. §290. Carson v. Gheio, 7 Gill & J. 127.) The second case is where the ol^eet of the devise has been once sufficiently described without the description which is false. In this case, the false description is rejected, and the will stands, if the description left is sufficiently certain. If not, the will is void for uncertainty. (11 Johns. Rep. 218. Wigram on Wills, 17.) The defendants in their answer ask to show, not a latent ambiguity or a false description, but a mistake, which is never allowed. (6 Conn. Rep. 270.)
   Scott, Judge,

delivered the opinion of the court.

1. This is a plain case. The application of the undoubted rules as to the admission of extrinsic evidence in the interpretation of wills, places the matter in a clear light. One of the rules referred to is this : that, for the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling it to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. (Wigram on Wills, 51.) The evidence allowable under this rule, and which was offered by the appellants, in connection with, the words of the will, shows, beyond all doubt, what property was intended by the testator to be given to his devisees.

It is also a rule that a redundant and superfluous description, which is inapplicable to an object well ascertained by previous or subsequent description, will not prevent the application of parol evidence to show what object was contemplated by the testator. (3 Starkie, 1024.) If the number of the township bad, been omitted by the testator, there would have been no doubt about the land he intended to devise. The inaccuracy or mistake in a description which is superfluous, can- , not make a devise void for uncertainty.

There is a distinction between an inaccuracy arid an ambiguity of language. Language may be inaccurate without being ambiguous, and it may be ambiguous though perfectly accurate. If, for instance, a testator, having a leasehold house in a given placo, and no other house, were to devise his freehold house there to A. B., the description, though inaccurate, would create no ambiguity. If, however, he were tydevise an estate to J. B., of D., son of Thomas, and there wepetwo persons to whom the entire description accurately/8/pplied, this description, though accurate, would be ambiguous. It is obvious therefore, that the whole of that class of cases in which an inaccurate description is found to be sufficient, merely by the rejection of the words of surplusage, are cases in which no ambiguity really exists. The meaning is certain, notwithstanding the inaccuracy of the testator’s language. The language may be inaccurate, but if the court can determine the meaning of this inaccurate language, without any other guide than a knowledge of the simple facts upon which, from the nature of language in general, its meaning depends, the language, though inaccurate, cannot be ambiguous. (Wigram on Wills, 58.)

Now, with the knowledge of the simple fact that the testator owned no other lands than the home place and the two quarter sections in controversy, can any one doubt what was intended by the words of the will. He devises his estate. The words are, the residue of my estate. He did not intend to give away any thing which did not belong to him; what he designed to give was his own. Can we suppose, against his solemn declaration, that he meant to die intestate as to the greater portion of his estate ? But does not the reference to the spring, taken in connection with the fact that there was such a spring on the land he owned, place this matter beyond all dispute ?

From the prkicii^fes which have been stated, it is obvious that the testimony offered was admissible, and that testimony, when produced, could leave no doubt that, by Ms will, the testator passed the land in controversy.

This is no attempt to prove an intention when the words of a will are ambiguous. The result attained is derived from the words of the will itself, merely by enduing ourselves with a knowledge of the circumstances which surrounded the testator in making it.

The .other judges concurring, the judgment will be reversed, and the cause remanded.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Caples et al., Respondents, vs. Branham, Appellant.
    1. A promise in writing to pay a specified 3um to trustees lo be appointed by a certain convention, is a valid note within the meaning of the first section of the act concerning “bonds and notes,” (R. C. 1845,) and imports a consideration.
    2. It is not necessary that the payees should he designated when the promise is made, if they are designated before suit brought.
    3. In declaring upon such an instrument, it is not necessary to set out a consideration in the declaration.
    4. One instalment of a note due by instalments may he recovered before the others are due ; and under the new practice, it would probably not be material whether the amount is sought to be recovered as a debt or damages.

      Appeal from Weston Court of Common Pleas.

    Action by Capíes and others against Branham on a subscription paper to recover $100. The paper was in these words :
    “January 22d, 1853.
    “We, the undersigned, agree to pay the amounts affixed 'to onr respective names, to trustees to be appointed by the educational convention of the Methodist Episcopal church south, for the Weston district, for the purpose of purchasing grounds and building houses suitable for one or more high schools, within the limits of Weston district; the place or places and character of the house or houses to be determined by said convention cr under their order by trustees or btherwise; one half; to be paid on the first day of June, 1858, and the balance on the first day of April, 1854.”
    This paper was subscribed by the defendant among others, and two hundred dollars written opposite his name.
    This suit was brought September 19, 1853, to recover the first instalment of the amount subscribed by the defendant. The petition alleges that the defendant, by the above writing, promised to pay the sum of $200 ‘‘to the trustees to be appointed,” &c., setting forth the effect of the instrument, and avers that the plaintiffs are the trustees appointed by the educational convention. No consideration for the promise is alleged, other than is imported in the words of the instrument.
    A demurrer was filed and the following .causes assigned : 1. That there was a defect of parties — there being no promisees, either natural or civil persons. 2. That the petition stated no consideration for the promise.
    The demurrer was overruled, and no answer being filed, a judgment was entered for the plaintiffs, from which the defendant appeals.

      A. Leonard, for appellant.
    1. The note sued on is not a note within the meaning of our statute, importing a consideration and so valid, propria vigore. There is no payee. It is of the very essence of a contract that there be at least two parties to it, persons capable in law. The statute has not altered this. By the express words of the statute, the payee in contracts embraced by it, must be designated in the instrument. This is as essential to the validity of the paper, as an instrument, as that it should be signed by the obligor or express the duty to be performed. An unsigned note, a note omitting the money or property to be paid, and a note omitting to designate the person to whom it is payable, are all equally void as instruments, although they may furnish evidence in support of a contract to pay. (Cox v. Beltzhoover, 11 Mo. Rep. 143. Brown y. Gilman, 13 Mass. Rep. 160. 1 H. Black. 606-610.) II. No consideration is shown in the petition for the alleged promise, and so the promise set np constitutes no legal obligation against the defendant. ( Trustees of Hamilton College v. Stewart, 1 Comst. Rep. 584. 10 Barb. S. C. R. 312. Bridgewater Jlcademy v. Gilbert, 2 Pick. 579. Limerick Academy v. Davis, 11 Mass. 114. Smith on Contracts, 163, 201. Eastwood v. Kenyon, 39 Eng. 0. L. Rep. 143. Thomas v. Thomas, 42 Eng. C. L. Rep. 947.)

      W. P. Hall and Vories, for respondent.
    1. It is not a good cause of demurrer that the payees were to be appointed after the note was executed. (Bull v. Talcot, 2 Root, 120. Thompson v. Page, 1 Metcalf, 570 — 71. 2. The instrument sued upon is one which, under our statute, imports a consideration. (R. C. 1845, tit. Bonds and Notes, sec. 1.) It is not necessary that a note, under our statute, should possess all the requisites of promissory notes under the statute of Anne, which are treated as negotiable instruments. (10 Mo. Rep. 675-718. 12 Mo. Rep. 532. 15 Mo. Rep. 602.) 3. The consideration apparent on the face of the instrument is sufficient. It is the appointment of trustees by the Methodist Episcopal convention. That appointment was made. Again, subscription papers for the erection of schools, churches, &c., are upon a sufficient consideration, and will support an action against the subscribers. ( George v. Harris, 4 N. Hamp. 534. 7 N. H. 435, and cases there cited. Underhill v. Gibson, 2 N. H. 352. Trustees v. Ripley, 6 Greenl. Rep. 445. 2 Root, 120. 20 J. R. 89. 1 Metcalf, 570-71. 6 Pick. 427. 6 N. H. 164. 2Denio, 403.)
   Scott, Judge,

delivered the opinion of the court.

1. Bills and negotiable promissory notes, by the common law, imported a consideration. Between the immediate parties to such instruments, the consideration might be enquired into as between the maker and promisee, and the drawer and the acceptor. All other contracts not under seal, whether written or oral, required a consideration. In 1765, Mr. Justice Wilmot was' strongly of the opinion, and Lord Mansfield apparently so, that a written promise not under seal, carrying with it the evidence of deliberation, required no consideration. Their opinion did not obtain. There is no difference at common law between an oral and a written promise not under seal; they are both classed under the head of simple or parol contracts.

Our legislature, aware that men are not apt to promise to pay money without a sufficient inducement or consideration, and knowing that, in most instances, a consideration exists for promises, has changed the rule of the common law, and, at an early day, made all notes in writing executed and signed by any person or his agent, whereby he shall promise to pay to any other person, or his order, or unto bearer, any sum of money or property therein mentioned, import a consideration. The object of this provision was, to place notes not negotiable on the same footing occupied by negotiable notes, so far as the matter of a consideration was concerned. The writing showed deliberation, and, in the nature of things, there is no reason why the one instrument should not import a consideration as well as the other. We are aware that the credit of negotiable paper is sustained by considerations of commercial policy. The law provided for one class of promissory notes. The statute was designed to provide for all others. The instrument sued on is certainly a note in writing, signed by a party promising to pay money. There is no form prescribed by law to which we must adhere in the making of a promissory note: no formal words are required. If, in sense, it is a promise in writing to pay another money or property, it is a promissory note. A negotiable note, payable to a fictitious person, is a valid instrument, and may be declared on as one payable to bearer.

2. An objection to the instrument sued on being considered as a note within the statute, is, that it is made payable to trustees to be appointed by the educational convention of the Methodist Episcopal church south. Now, when the trustees are appointed, as has been done in this case, the note is one payable to those trustees. A bill drawn by one, payable to his own order, is a valid instrument. (Buller, 269.) So, a note ■payable to the heirs of E. C., by her marriage with W. C., has been held a valid instrument. (11 Mo. Rep. 144.) So, a writing signed by Wm. Muldrow and others, by which they promise to pay to Wm. Muldrow, or order, has been held to bo a note within the statute. (7 Mo. Rep. 563.) In this case, it is said, in good sense and sound principle, there is no difference whether the plaintiff was originally named or afterwards designated, according to the terms of the defendant’s undertaking ; so soon as the order was given, the promise attached and enured to the benefit of the person to whom it was given. The authorities referred to in the last cited case are in point, to show that the objection above named to the validity of the instrument under consideration, cannot be sustained. They are mostly taken fi*om the English books, and, upon reference to the statute of Anne in relation to promissory notes, it will be found similar to our own, and to contain the words, “ to pay to any other person or his order.” Thus, it will be seen, that the English and American authorities maintain that, although the statute requires a promissory note to be payable to any other person, yet it is no objection that the person is not designated at the time the promise is made, but it will be sufficient that he is ascertained before the institution of the suit.

3. In this state, ever since the statute of 1807, which allowed bonds and notes, when sued on, to be read in evidence, unless their execution was denied under oath, it has been held that promissory notes imported a consideration, and that, in an action on them, it was unnecessary to set out a consideration in the declaration. (Rector & Conway v. Honore, 1 Mo. Rep. 204.)

4. Under the former system of pleading, there would be an objection to this action, on the ground that a part of a debt due by instalments, was sought to be recovered as a debt. The money here sued for is claimed as a debt. A debt is not divisible. Strictly, this action, in form, should have been for damages. The objection, however, would probably not be available under the present practice act, and this suggestion is made .lest it should be thought that the court had impliedly overturned a principle -which may have application on occasions not arising in pleading. The other judges concurring, the judgment ■will be affirmed.


text:
    Fackler, Plaintiff in Error, vs. Chapman, Defendant in Error.
    1. Under the 35th section of article 9 of the act concerning “ crimes and punishments,” tit- C. 1845,) if the slaves of several persons unite in the commission of a larceny, the owner of one of the slaves will be liable for all the damages.
    2. In an action against a master for a larceny committed by his slave, the declarations of the slave, as to where the stolen property might be found, are admissible in evidence, in connection with the fact that the property was found at the place mentioned. The declaration may be proved by one witness and the fact by another.
    3. Possession of stolen goods recently after the larceny is a circumstance of guilt, the weight of which is for the determination of the jury under all the circumstances.

      Error to Cole, Circuit 'Court.

    This was an action, under section thirty-five of article nine of the act concerning “ crimes and punishments, (R. C. 1845,) brought by Eackler in 1851, to recover the value of certain goods alleged to have been stolen from him by two slaves of the defendant.
    The facts, as they appeared in evidence, were about these : Certain goods were stolen from the store of the plaintiff, one night in October, 1850. Defendant was then in California. His two slaves were in the possession of William A. Davison, who had hired them. About two weeks after the larceny, the plaintiff received information which led him to go to the house of Davison to make a search. William C. Young accompanied him. They found a portion of the goods at the house of Da-vison, in a box under a bed in which the slaves slept. The slaves stated where the other goods could be found, and their statement was written down by the plaintiff. Plaintiff handed this statement to his clerk, McDearmon, who afterwards made search and found portions of the goods at the places specified. He found Mr. Palmer’s negroes in possession of some of the goods, and Mr. Stanley’s of others.
    At the trial, the plaintiff examined Young as a witness, and read the deposition of McDearmon, and this was all the evidence in the case.
    ° Young was asked what the defendant’s slaves stated as to where the remainder of the goods could be found, but the court excluded his answer, when it appeared that he did not know that the goods actually were found at the places named by the slaves. The written statement of the declarations of the defendant’s slaves was not produced at the trial. McDearmon testified to finding portions of the goods at the places named in the statement.
    Portions of the deposition of McDearmon, consisting of the statements of Palmer’s negroes and of third parties, wsi’e excluded.
    The plaintiff asked four instructions, the first and second of which were refused, and the third and fourth given.
    The first asserted that possession of part of the stolen goods recently after the loss by the defendant’s negroes was prima facie evidence that they had stolen the whole, unless such possession was otherwise accounted for.
    The second asserted that the defendant was liable for all the goods stolen, not to exceed the value of his slaves, if they aided in the larceny, oven though the slaves of other parties might also have aided in it.
    At the instance of the defendant, the jury were instructed that the defendant was only liable for the goods actually stolen .by his negroes and not for any other.
    The court, of its own motion, gave an instruction which is substantially the same as the first instruction asked by the plaintiff and refused, with the following qualification : “ This presumption of guilt from possession, however, ceases as to sucb articles as were found in the possession of other slaves than the defendant’s (recently after the loss,) unless the jury believe from the evidence that such articles were obtained from the slaves of the defendant after they had been stolen.”
    There was a verdict for plaintiff for the sum of $26 90, the amount claimed being $115 65. He sued out this writ of error.
    Parsons, for plaintiff in error.
    1. The court erred in excluding the testimony of Young as to where the remainder of the stolen property might be found. It was competent to prove such statements by one witness, and prove that they wore true-by another. This was admissible to show a guilty knowledge on the part of the slaves. (Archbold’s Crim. Ev. p. 50-1. Crowther v. Gibson, 19 Mo. Rep. 365. Marr v. Hill & Haynes, 10 Mo. Rep. 330.) 2. The second instruction asked by plaintiff should have been given. This action is in the nature of trespass, and trespassers are jointly and severally liable for the whole injury. ( Commonwealth v. Millard, 1 Mass.) 3. The instruction given by the court, at its own instance, is not the law, as applicable to the facts of this case.

      Edwards, for defendant in error.
    1. Evidence of the statements of the slaves was not admissible against their master, nor was evidence of facts growing out of such statements admissible. It was objectionable as hearsay testimony, and also as negro testimony. 2. The first instruction asked by plaintiff was properly refused. The possession was not recent, and besides, the possession of the slave is not evidence against his master; nor would proof that the defendant’s slaves stole a part of the goods render him liable for all of them. (2 Russ, on Crimes, 123-4, and note ff.) 3. The second instruction was properly refused. If the slaves of defendant and of others stole the goods together, it is not within the meaning of the statute that the defendant should be liable for the whole of them.
   Scott, Judge,

delivered the opinion of the court.

This was an action against the defendant in error, under the thirty-fifth section of the ninth article of the act concerning crimes and punishments, to recover damages for property of the plaintiff, alleged to have been stolen by slaves belonging to the defendant.

1. The main question in the case is, whether, if the slaves of several persons unite in the commission of a larceny, the owner of one of the slaves will be liable for all the damages resulting from the wrong. Every larceny includes a trespass.' In trespass, all are principals, and each trespasser is liable for the entire damages which may flow from the commission of the injury, although many may be concerned in it. There is no contribution among wrong doers. If the slaves themselves could be sued for the wrong done, this principle, no doubt, would be applicable. Can it make any difference that the action is given against their masters ? In case the slaves of several persons unite in the commission of a larceny, if the person injured by the offence was driven to his separate action against each master for the share of property taken by his slave, the difficulty in ascertaining, in such cases, the portion taken by each slave, would make the remedy almost nugatory. As the statute has rendered the master liable for the damages resulting from the larceny of his slave, there can be no hardship, in an action against him, in attaching to the act of the slave the legal consequences which flow from it. If three slaves belonging to different masters unite in a theft of property of the value of one hundred dollars, each one of the slaves, in the judgment of the law, has stolen one hundred dollars’ worth of property, and not property worth one-third of that sum, or only such portion of it as he has actually taken and carried away.

2. It can scarcely be necessary to state that such portions of the deposition as merely related to what the witness heard from others were inadmissible. The declarations of the slaves, showing where the stolon property might be found, were evidence, in connection with proof that the property was found at the places mentioned by them. It is not necessary that the declarations of the slaves and the fact that the property was found at the place where it was stated to be, should be proved by the same witness. One witness may testify as to the declarations, and another may prove that the property was found where it was alleged to be. Under this view, there would be no impropriety in admitting the testimony of the witness, Young, if it was shown by another witness that the property was found at the place mentioned by the slaves to him.

The fact that the declarations of the slaves were reduced to writing, is no reason for refusing proof of them, in the absence of such written declarations. It appears that the writing down of the declarations was an extra-judicial act, and altogether voluntary.

We cannot say that the court erred in refusing the plaintiff’s first instruction. The fact that the goods stolen were found in the possession of the slaves of the defendant, was a circumstance tending, to prove that they were taken by them, the weight of which was a matter proper for the determination of the jury under all the circumstances.

There were ivords in the instruction given by the court which were scarcely warranted by law. The imputation of theft, arising from the possession of stolen goods, could only arise as to the goods actually in the possession of the thief. If a part of the goods were proved to have been stolen by the slaves, the jury rvould determine, from the circumstances, whether all the goods lost were not taken at the same time.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded.


text:
    Taylor, Defendant in Error, vs. Steamboat Robert Campbell, Plaintiff in Error.
    1. Under our act, (R.. C. 1845,) a party may proceed against a boat by name, for the non-performance of a contract made by her master, upon a trip up. the river, for the transportation of freight upon the return trip.
    2. One partner may sue for the breach of a contract made by him in his own name, although it was made for the benefit of the firm.
    3. A. sued a boat for the non-performance of a contract made by her master by telegraph. It was proved that A. sent a dispatch to the boat, which was. delivered to her officers. Held, a dispatch purporting to come from the master in reply might go to the jury upon proof that it was delivered in the telegraph office, without express proof that it was sent by the master, or with his consent.
    4. It is no defence for a parly, who is sued for the breach of a contract to. transport a specific number of articles, with which he did not offer to comply, that the plaintiff did not have as large a number as was specified ready? for transportation.
    5. A telegraphic dispatch from a boat on the Missouri river agreeing to transport freight, without naming the point of destination, may go to the jury as evidence of a contract to transport to St. Louis.

    6. (Collier v. Swiuney, 16 Mo. Rep. 484, affirmed.)

      Error to Cooper Circuit Court.

    This Ivas an action against the steamboat Robert Campbell, for the non-performance of a contract of affreightment.
    The petition stated that William Rdds, master of the boat, on the 12th of December, 1852, agreed, on behalf of the boat, to transport 400 hogs of the plaintiff, from Boonviile, on the Missouri river, to St. Louis, at fair rates, and failed to comply with the contract.
    The master answered on behalf of the boat, denying that he. made the contract set forth in the petition, alleging that the. plaintiff did not have 400 hogs ready to be shipped on said boat in pursuance of the supposed contract, and further alleging that, ¡ on account of low water and ice, it was impossible for the b|¡at |O to have complied with the contract, if any such had been made.
    At the trial, the telegraph operator at Boonviile testified that the plaintiff delivered imhis office the following dispatch, which was forwarded to Lexington on the day of its date :

      “ Boonville, December 11,1852.
    “ To Robert Campbell:
    “ Make room for 400 bogs at fair rates.
    “Wm. Taylor.”
    Tbe operator at Lexington testified that the above dispatch was received at his office on the day of its date, and on the same day “ delivered to the officers of the steamboat, Robert Campbell and that on the next day, the following dispatch was deposited in his office and forwarded to Boonville :
    “Lexington, December 12.
    “Will take your hogs. Be down to-morrow morning.
    “ Capt. Edds.”
    Upon this testimony, the plaintiff was permitted to read the-dispatches in evidence to the jury, notwithstanding an objection by the defendant.
    John Taylor testified that ho and his brother, the plaintiff, were in partnership; that, on the 11th of December, 1852,. they had 870 hogs at Boonville, which they had purchased, on. joint account, and intended shipping to be sold on joint account as partnership property ; that ho had refused to join in a suit, against the boat, but expected to share the expenses and benefits, if any resulted from the suit.
    It was in evidence that the Robert Campbell passed Boonville;. on her downward trip, on the 13th of December, 1852, without attempting to land, and that she was the last boat down during that month. There was evidence that, on account of ice in the-river, it would have endangered the safety of the boat to have-taken 370 hogs on board, and evidence to the contrary. The-plaintiff introduced evidence to fix the amount of damage he-had sustained by the failure of the boat to. take the hog's.
    The court left it to the jury to determine- whether there was a contract, and directed them that the boat would not be excused for a failure to comply with her contract by the low water or ice..
    The following instructions asked for the defendant were refused :
    1. If tile jury find from the evidence, that the plaintiff did* -not have 400 bogs ready to be shipped at Boonville as the boat passed down, they must find for the defendant.
    2. If the hogs belonged to plaintiff and John Taylor jointly, and they were in partnership in the same, then the jury must find for defendant.
    3. There is no evidence that the steamboat Robert Campbell, by and through the master thereof, made the contract set forth in the plaintiff’s complaint, and the jury must therefore find for the defendant.
    4. If it would have endangered the life of the boat to have taken the hogs at the time she passed down, on account of ice and the stage of water, then the boat was excused from taking the hogs at that time.
    The plaintiff obtained a verdict for $600, and the defendant sued out this writ of error.

      W. A,dams, for plaintiff in error.
    I. The telegraphic dispatch signed, “ Capt. Edds,” was improperly read in evidence, 1, because no proof was given that Edds, the master, signed the same or authorized it to be sent, and 2, because the dispatch itself, or taken in connection with the other testimony, was no evidence of any contract, much less of the contract set forth in the complaint. II. There was -no proof whatever of a contract to transport hogs from Boonville to St. Louis. III. There were only 370 hogs at Boonville, and they were partnership property, belonging to plaintiff and his brother jointly. If there was any contract, it was a joint contract, made with the plaintiff and his brother; and 370 hogs would not satisfy a contract for 400, nor could the suit be brought in the name of the plaintiff alone. (New Practice Act.) IY. Even if there had been a contract, as alleged, it was not such a contract as would authorize a suit against the boat. The fourth clause of the first section of the act concerning “ boats and vessels” only applies to cases where an actual bailment has .been made, and not to contracts made by the master or owner -to receive and transport goods at a future time. V. The ob¡■struction of navigation by ice is an act of God, which excuses the non-performance of a contract of affreightment. YI. The master of a boat, as such, has no power to bind even the owners by a contract for the future reception and transportation of freight; much less can he make a contract of that kind so as to ereate a lien on the boat under the statute. (Story on Agency, §121. 20 Ohio Rep. 54.)

      J. W. Morrow and J. B. Gardenkire, for defendant in error.
    I. John Taylor was not a necessary party. He was no party to the contract, and if he had joined, there would have been a variance between the contract set out and the proof. He was a dormant partner and was properly omitted. (2 Taunt. 326-7. 8 Serg. & Raw. 54. 6 Pick. 352. 3 Maine, 416. 3 Cow. 85.) He would not consent to be made a party, and therefore was properly omitted. (Story’s Eq. PI. §167, note 3. 11 Yesey, 313.) A complete determination of the controversy can, for this reason, be had without him. (New Practice Act, art. 3, sees. 7 and 10. 19 Yesey, 457.) The objection, not being taken by answer, is waived. (New Practice Act, art. 6, sec. 6.) II. There were facts and circumstances in evidence tending to prove the making of the contract set out in the petition, and they were properly submitted to the jury. (Cow. & Hill’s notes, part 2, p. 1310 and authorities cited.) The transmission of messages by telegraph is a new and great element in the transaction of commercial business. Contracts are made every day for large amounts through its means ; and if the strict rules of evidence are to be applied to such contracts, its utility will be greatly diminished. III. As the defendant, by his own contract, assumed the obligation to take the hogs, the act of God will not excuse him for a failure, because he might have made the proper exceptions, if he had chosen. (Story on Contracts, §668. 16 Mo. Rep. 467.)
   Scott, Judge,

delivered the opinion of the court.

This was an action brought by the defendant in error against the steamboat Robert Campbell, for the non-performance of a contract of affreightment.

1. One of tbs points made in the cause is, that a proceeding against a boat in rem for the non-performance of the contract, the subject matter of this suit, is not within the statute; that the captain of a boat cannot make future contracts for the transportation of freight, and that the only remedy for the breach of such contracts is, an action against the owners of the boat, as the statute was designed to render the boat itself subject to process, only in those cases in which the freight had actually been received on board.

Opinions of judges in other states were cited in support of this view of the subject. But it did not appear that the statutes in those states were entirely similar to our own. Questions of this kind depend, for their solution, on the words of the law, and it is obvious that opinions based on statutes varying from ours, can have but little weight. Our law creates a lien, and gives an action against a boat, for all demands or damages accruing from the non-performance or mal-performance of any contract of affreightment, or of any contract touching the transportation of persons or property. These words are sufficiently comprehensive to embrace a negleGt or refusal to comply with a contract of affreightment, or for the transportation of property. The construction contended for would render the word “non-performance” inoperative, as all the cases claimed to be within the statute would be covered by the word, “ malfeasance.” We will not undertake to determine how far the captain is authorized to make future contracts binding the boat, but it is obviously for the interest of the owners of boats that captains, in their voyages up a stream, should have power to make contracts to take freight on their return. The denial of such a power would operate injuriously to the boats themselves, .as, without a contract, many would be unwilling to take their produce to the river for transportation. It is not an easy matter to ascertain who are the owners of a steamboat, and, when the owners are ascertained, they are usually found to reside at places remote from those at which their boat is employed ; heneo the law for the benefit of those who deal with boats has allowed an - attachment against' them i'or certain enumerated wrongs.

2. The hogs to be transported belonged to the plaintiff and John Taylor in partnership. Now, a contract made by an agent, in his own name, may be sued on by the agent; for it is a general rule that, wherever an express contract is made, an action is maintainable upon it, either in the name of the person with whom it was actually made, or in the name of the person Avith whom, in-point of law, it was made. ( Cothay v. Fennell, 21 E. C. L. 146.) The property belonging to partners, a contract made respecting it would, in point of laAV, be a partnership contract, and suit upon it would properly be brought in the names of the firm. But, as this'contract Avas made in the name of one partner, there is no principle of law which prohibits an action on it in the name of him alone by Avhom it Avas made. A mere agent, as we have seen, may sue on a contract made in his own name; a multo fortiori, the same thing can be done by a partner. If this matter stood as at common law, the foregoing would be the principles, it is conceived, by which the parties would be governed in the institution of a suit on this contract. Noav, as the statute has made other parties necessary, as advantage Avas not taken of that omission in the way and at the time pointed out by law, no exception could be taken at the trial for the want of proper parties. (Practice Act, art. 6, sec. 6.) Nor was there any variance, as the contract proved corresponded Avith that stated in the petition.

3. The evidence presents a neAv question, and one of some importante to business nien, in relation to the manner in which the execution of a contract, made through the medium of a telegraph, is to be proved. It is not expected, when men contract by telegraph, that they are afterwards to be bound or not., as-their passions or interests may dictate. Such contracts- must be regarded as binding and obligatory as if made in the ordinary way. Private communications relative to business, made by means of a telegraph, are usually relied on, and that reliance has not proved unfounded. When men consent to use the telegraph for the purpose of making an agreement, there is no hardship in submitting to a jury, as evidence of their consent to such an agreement, those facts and circumstances which are received by and acted on by mankind, in communicating through that medium. Here, the defence does not turn on any imposition or forgery on-the part of the agents of the telegraph ; but the plaintiff, by the pleadings, is put to the proof of the contract on which he has sued. The evidence is ample to show that a communication was made by the plaintiff to the defendant ; but the difficulty arises in showing that the answer to that communication was from the agent of the defendant. The telegraphic agent testifies that the dispatch received from the plaintiff was delivered to the officers of the steamboat Robert Campbell, and a dispatch in answer to that of the plaintiff was deposited in his office to be forwarded to the plaintiff, which was done on the next day. If, under such circumstances, any person had received a dispatch in answer to one forwarded by him, he would not have failed to act upon it. His conduct would have been based upon the faith usually given to the correctness and fidelity with which such business is transacted by the agents of the telegraph. For these reasons, we are inclined to the opinion that the evidence offered by the plaintiff was ’sufficient to permit tho dispatch to be read to the jury, who would then, from all the circumstances, determine whether it was the act of the master of the boat.

4. We do not consider that the principle which makes entire a contract for the delivery of a number of specific articles, and which relieves a vendee from the obligation of receiving a part of them as having any application under the facts of this case. Had the defendant refused to receive a less number of hogs than that stipulated, then the question, whether the number offered was a substantial compliance with the contract, would have arisen. Had less than the stipulated number been refused, other hogs might have been obtained, or the plaintiff might have been willing to have paid freight for the number agreed upon, in order that those on hand might have been transported to market.

5. ..Considering the medium through which.the contract was made, and the fact that St. Louis is the great mart of. this state, and that all boats on the Missouri river make that place their destination, we are of the opinion that the dispatches sufficiently show that a contract of affreightment for four hundred hogs to St. Louis was intended by the parties. Had any other port than St. Louis been contemplated, the contract could not have been sustained. When a boat on the Missouri river agrees to take freight, every one understands the place to which it is to be carried.

6. It may be answered to the objection that the boat was prevented by ice from complying with her contract, that this ease falls within the principle of that of Collier v. Swinney, (16 Mo. Rep. 484.)

Judge Ryland concurring,

judgment affirmed.


author: Scott, Judge.

text:
    Oliver, Plaintiff in Error, vs. Oliver, Defendant in Error.
    1. Bill for a divorce. It appeared from the record that, after a decree -nisi the plaintiff was heard upon the merits and his bill dismissed. No exceptions saved. Judgment affirmed.

      Error to Callaway Circuit Court.

    Jones, for plaintiff in error.
   Scott, Judge.

This was a suit begun by the plaintiff in error against his wife, the defendant in error, for a^divorce. There was.a decree nisi taken against the wife. Then the following entry appears of record: “ Afterwards, the plaintiff appears and being heard, it is considered and adjudged by the court that his petition be dismissed.”

It appears from this entry that the cause was heard by the court on the merits, and that it did not go off on a demurrer. There being nothing preserved by a bill of exceptions, none of the evidence taken being shown, the judgment must be affirmed.

Judge Ryland concurring.


text:
    Javens, Defendant in Error, vs. Harris, Plaintiff in Error.
    X. A finding must contain a statement of facts proved, not a detail of evidence.

      Error to Jackson Circuit Court.

      J. B. Hovey, for plaintiff in error.
    Sheley, for defendant in error.
   Scott, Judge.

This cause was tried by the court, and, in a matter of importance, the judge, in his finding, stated the evidence in relation to a fact, instead of stating how the fact really was. The finding of the court, when the cause is submitted to, it, must contain the facts as proved by the evidence, and not a mere statement of the evidence itself. If the court is at a loss as to how a fact should be found from the evidence, it should not be sent here, but the submission to the court should be set aside, and the cause tried by a jury.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded.


text:
    Whyte, Plaintiff in Error, vs. Bennett’s Administrator, Defendant in Error.
    1. No facts found.

      Error to Callaway Circuit Court.

    This suit originated in the county court and was taken by appeal to the Circuit Court.

      J. F. Jones, for plaintiff in error.

      Jbisell, for defendant in error.
   Scott, Judge.

This cause was tried by the court without a jury, and as no facts were found, as required by law in such oases, the judgment will be reversed, and the cause remanded.

Judge Ryland concurring.


text:
    Elliott, Respondent, vs. Pogue, Appellant.
    I. Judgment affirmed for'want of hill of exceptions, the cause having originated before a justice.

      Appeal from JYezoion Circuit Court.

      F. P. Wright, for appellant.

      John M. Richardson, for respondent.
   Scott, Judge.

This was an action originally tried in a justice’s court, and was transferred, by appeal, to the Circuit Court. There was a trial on the merits in that court, but as no bill of exceptions was preserved, there is nothing in the record which will warrant us in disturbing the judgment below.

Judge Ryland concurring,

judgment affirmed-


text:
    Ruble, Respondent, vs. Thomasson & Abernathy, Appellants.
    1. Bill of exceptions stricken out, because not filed at the term at which the trial took place, no reason for the delay appearing on the record.

      Appeal from Parry Circuit Court.

    Action commenced before a justice, and appealed to the Circuit Court, where there was a judgment for the plaintiff- at the November term, 1858. The defendant appeared before the clerk in vacation and prayed an appeal, which ivas granted. At the succeeding May term, by leave of court, he filed his motion for a new trial, which being overruled, he filed his bill of exceptions. At the foot of the bill of exceptions, was what purported to be an agreement by the plaintiff’s attorney, that it might be filed nunc pro tunc, but there was no entry upon the record in relation to the matter.

      F. P. Wright & Price, for appellants..
    No appearance for respondent.
   Scott, Judge.

No reason appearing in the record why the bill of exceptions filed in this case was not made up until the term subsequent to the trial of the cause, it must be stricken out and the judgment affirmed;

Judge Ryland concurring.


author: RylaND, Judge,

text:
    Ready, Respondent, vs. Steamboat Highland Mary, Appellant.
    1. Upon the question of negligence of a boat, evidence of the statements of the pilot is not admissible.

      Appeal from Jackson Circuit Court.

    This was an action against a boat under the statute to recover the value of a horse alleged to have been lost by reason of the negligence of the officers and crew of said boat. The facts appear in the opinion of the' court when the cause was formerly here. (17 Mo. Rep. 461.) The case now comes here after a trial by jury. At the trial, the deposition of Sublett, who was a passenger on the boat upon the trip when the horse was lost, was read on behalf of the plaintiff. The defendant objected to a portion of this deposition, which is set out in the opinion of the court, but the objection was overruled. After a verdict and judgment for plaintiff, the defendant appealed.

      J. B. Hovey, for appellant,
    among other points relied upon for a reversal of the judgment, insisted that the court erred in admitting the evidence of Sublett as to what Holland told him.
    There was no appearance for respondent.
   RylaND, Judge,

delivered the opinion of the court.

From the record in this case, it becomes necessary for this court to consider the rulings of the court below in regard to admitting evidence for the plaintiff, and in giving instructions to the jury.

This case was before this court at a previous term, and was reversed. (See 17 vol. Mo. Rep. 461.) The general principles involved in the case were settled in tbe opinion there given and reported. We shall now only observe the instructions and the evidence of the witness, Sublett.

1. In regard to the instructions, this court cannot find any serious objection to those given, nor do we see error in refusing the one not given. Upon this ground, then, we would not disturb the judgment; hut this court is, with reluctance, compelled to send the case back, for the act of the court below, in admitting that part of Sublett’s deposition, in which he details a conversation between himself and Mr. Holland, a pilot on the boat.

The witness, in his deposition, states : “On the night that said horse was lost, witness sat up until 11 o’clock, knowing that the mouth of Little Blue was a dangerous place on the river. Mr. Holland told witness that he. would not pass that place that night. Mr. Holland was one of the pilots of said boat. With this assurance, witness went to bed and knew nothing of. the accident until morning.”

The defendant objected to that part of the deposition detailing what Holland told witness. It was but secondary evidence — hearsay, at best, and Mr. Holland might have been produced and examined, or his deposition taken, showing why he was unwilling to pass that part of the river at night.

We cannot say what .effect this improper evidence had on the minds of the jury ; it was calculated to make the impression that a pilot thought it wrong to pass by the mouth of Little Blue in the night; and that it was, therefore, some evidence of negligence or want of care in the officers of the boat in thus passing. No matter what impression was made, it is not for this court to say that no harm was done to the defendant by this evidence. There may have been none, or it may have been an inducement to make the jury find for the plaintiff. At all events, it was not proper evidence ; it should have been rejected; it was error to admit it. The judgment below is reversed, and the cause remanded ;

Judge Scott concurring.


text:
    Northcutt, Respondent, vs. Northcutt et al., Appellants.
    1. Ií a testator’s name is signed to a will by another at his request, and he then makes his mark, this is not a sufficient signing by the testator himself, but the will must be attested as required by the fifth section of the act concerning “wills,” (R. C. 1845.)

      Appeal from Boone Circuit Court.

    This was a proceeding to vacate the will of William Nortb-ctttt, previously established in the Roone county court. The will was executed in 1846, before the repeal of the fifth section of the act concerning “wills,” (R. C. 1845.)
    Upon a jury trial of the question whether the instrument was the will of the deceased, the proof was, that one of the subscribing witnesses signed the testator’s name at his request, and that thereupon, the testator made his mark in the usual manner, by putting a cross between his Christian and símame ; but there was no statement upon the will that the witness signed the testator’s name at his request, pursuant to the fifth section of the statute of wills of 1845. The court ruled that the instrument, on account of this omission-, was not well executed, and under this direction, the jury found against the will.

      Gordon & Guitar, for appellants.
    1. Under our statute of wills before the revision of 1845, a mark was a sufficient signing. In adopting the British statute, we adopted the construction put upon it in British courts. (8 Levens, 1. 8 Yes. 185. 8 Yes. 504. 8 Adol. & Ellis, 94. 5 J. R. 144. 10 Paige’s Oh. Rep. 88. 16 Barb. S. C. Rep. 145. 13‘ Ire-dell, 259. 2 Greenl. Ev. §674.) 2. There have always been two modes of executing a will provided by the statutes of wills— a signing by the testator himself, and a signing by some other person by his direction and in his presence. The new provision, contained in the fifth section of the act of 1845, provides additional formalities where the second mode of signing is adopted, and, under the decision of this court, (14 Mo. Rep. 611,) it is essential to a valid execution of the will under this second mode, that those additional formalities should be observed ; but neither this decision nor the statute under which it was made touches the present case, where there is a good execution of the will by the testator’s own signing with a mark.

      S. A. Young and Boyle Gordon, for respondent.
    A mark is not a sufficient signing under the fourth section of our statute. The legislature undoubtedly used the word signed in the sense of writing the name. They intended that the handwriting should afford some evidence of the identity of the signature. To provide for cases where the testator -was not able to write? they allowed his name to be signed by another ; but require the person who writes the name to attest the fact in the manner pointed out by the fifth section. That the word “signed” is used in this sense in the fourth section, is evident from the fact that it is thus used in the fifth section — “ every person who shall sign the testator’s name’’ &c. Different sections in a statute must be taken together in construing it. Although the fourth section of our act is a transcript of the British statute, it does not follow that it is to have the British construction when incorporated into an act, other provisions of which show' that such was not the design of the legislature. But the late decisions show that a mark is not a sufficient signing, even within the British statute. (1 Phill. on Ev. (Sd Am. ed. p. 486, and authorities cited in a note.) 2 Yesey, sr., 459.) If, however, a mark is a sufficient signing within the fourth section, the testator must intend to authenticate his will by this means alone. In this case, the evidence shows that he requested his name to be written. If this was intended by the testator as a part of the act to authenticate the instrument, it was necessary that the directions of the fifth section should be followed. The case of McGee v. Porter, (14 Mo. Rep.) is relied on as in p.oint.
   Scott, Judge,

delivered the opinion of the court.

1. The cases which have fallen under our notice, in which it has been held that the making of a mark was-a sufficient signing under the statute of wills, (29 Chas. II,) of which ours is a copy in this respect, are those in which the will was authenticated by the mark of the testator alone without his name. (5 John. 144.) In the matter of Field, (7 Eng. Ecclesiastic Rep. 576.) In the matter of Bryce, id. 128. Baker v. Dening, 35 E. C. L. Rep. 335.) Admitting that the making of a cross is a sufficient signing within the statute, yet it should appear that the testator relied on that act alone as the means of authentication. If to the cross he has superadded his name, or required it to be done, it would appear that he did not rely on the cross for the authentication of his will. If the testator’s name is signed to his will by another, at his request, it is difficult to perceive why the will should not then be attested, as is required by the fifth section of the act concerning wills. We know that the mark alone is not often used as a means of authenticating instruments. It is almost invariably used in connection with the written name of the marksman. Its object is, to show that the name written is not subscribed by the person making the mark, but by some other person for him. We do not recollect an instance among us in which a mark alone was used as a signature without the name of the marksman.

The words of the act are, that every person who shall sign the testator’s name to any will by his direction, shall subscribe his own name as a witness to such will, and state that he subscribed the testator’s name at his request. Here, the testator’s name is subscribed to his will by another, at his request. How, then, can we say that he designed authenticating his will by the mark afterwards made ? If the making of a mark, when there is a signature of the name, should be deemed a sufficient authentication of a will, nothing would be easier than to avoid the requisition of the statute, in every case of a signature of the name of the testator, by the direction of another. It would only be necessary to make a cross, a thing easy to be done and difficult to be detected, and the provision of the statute would be defeated.

This case is within the very words of the statute, and there is nothing showing that it is not also within the reason of it, and, as the person who subscribed the...testator’s name, did not state in his attestation of the will, that he subscribed the testator’s name at his request, the will is void.

Judge Ryland concurring,

the judgment will be affirmed.


text:
    Schneider, Plaintiff in Error, vs. Staihr & Wife, Defendants in Error.
    1. The act of 1849, exempting certain property of married women from the debts of their husbands, does not prevent the wife from voluntarily joining in a conveyance of her real estate to secure a debt of her husband.
    2. Where a minor feme covert joins in a mortgage of her real estate, she may plead infancy daring minority in a suit to foreclose.
    3. The husband’s estate during the marriage may, however, be subjected to sale.
    4. In a suit to foreclose a mortgage of an undivided interest in real estate, it is not proper to make a sheriff, who has made a partition sale of the land since the date of the mortgage, a co-defendant, for the purpose of obtaining an order upon him to pay over to the mortgagee the mortgagor’s portion of the proceeds.

      Error to Cole Circuit Court.

    Petition by Schneider to foreclose a mortgage executed by Staihr and wife, in 1851, upon the wife’s undivided interest in the real estate of her deceased father, to secure a note of the wife’s brother, upon which her husband was security. After the execution of the mortgage, the real estate was sold by the sheriff in partition by order of court. The sale was upon credit, and the purchase money had not yet become due. The sheriff was made a co- defendant, and the plaintiff prayed for an order upon him to pay over out of the wife’s share of the proceeds enough to satisfy the mortgage debt.
    The defendants answered, admitting the execution of the mortgage, but insisting that, -as the wife acquired the property by descent, it could not he subjected to the payment of her husband’s debts, and further alleging that, at the date of the execution of the mortgage, the wife was a minor.
    At the trial, there was evidence that the wife was a minor when the mortgage was executed, and that she had not jet become of age. The court directed the jury to find for the defendants, if they believed the wife was a minor when she executed the mortgage, and now disavowed the act, and refused contrary' instructions asked by plaintiff. An instruction that the plaintiff was entitled to a general judgment against Staihr, for the amount of the note secured by the mortgage, was also refused. The plaintiff then submitted to a nonsuit, and after an unsuccessful motion to set the same aside, brings the case to this court by writ of error.
    Parsons, for plaintiff in error.
    1. In the eye of the law, Mrs. Staihr is not a minor. After her marriage, the law treats her as an adult. 2. Even if the fee simple title could not be sold on a foreclosure of the mortgage, still the husband’s tenancy could be sold to satisfy the debt, and in this view, the plaintiff was entitled to recover against him. He was duly summoned and appeared to the action. If his interest in the mortgaged property was not sufficient to satisfy the debt, the plaintiff was entitled to have the residue levied of his other property. (R. 0. 1845, tit. Mortgages, p. 571, §12.) 8. The act of 1849 does not apply to this case. 4. Mrs. Staihr cannot disavow the execution of the mortgage until she becomes of age. (9 Cowen, 626. 17 Wend. 119.)

      E. A. Edwards, for defendant in error.
    1. The property conveyed by this mortgage, having descended to Mrs. Staihr after the debt secured thereby was contracted, cannot be held liable for such debt. 2. Property descending to a married woman cannot be made liable for a debt contracted by her husband as the security of another, under any circumstances. (Sess. Acts of 1849, p. 67.) 3. Mrs. Staihr being a minor when she executed the mortgage, is not bound by the same after disavowal. (Fousev. JVbrcum, 12 Mo. Rep.)
   Scott, Judge,

delivered the opinion o£ the court.

1. It cannot be maintained that the act of the 5th March, 1849, exempting the property of married women from the debts of their husbands, was designed to prevent femes covert from disposing of their real property by a voluntary conveyance, for whatever purpose they thought proper. If married women, clothing their deeds with the solemnities required by law to make them effectual, will convey away their estates, the law does not interpose to prevent them. Without their consent signified in the manner prescribed by law, their property cannot be taken by execution to satisfy their husband’s debts. But if they will voluntarily give it away, they cannot be prevented. The husband and wife may unite in a sale of the wife’s land, and apply the money thus obtained in payment of the husband’s debts. If this can be done, what is- to prevent her from joining in a mortgage with her husband, and thereby subject her land to the satisfaction of his liabilies?

2. The wife being a minor at the time of the execution of the mortgage, her infancy may be set up in avoidance of the deed.. As to the time of avoiding contracts made by infants, the weight of authority seems to be that, in cases of sales of land, infants cannot conclusively avoid the conveyance until they are-of age. (Amer. Leading Oases, 1 vol. 114.) As in this instance, the effect of the omission of the wife to plead her infancy, would be to subject her estate to be sold under execution, by which an innocent purchaser might be injured, and as this proceeding is in the nature of an action to subject her estate to the payment of a debt, from analogy to the course in a suit on a contract by which an infant is jointly bound with others, we see no impropriety in permitting her to set up her' infancy, though under age, in avoidance of this claim against her. In coming to this conclusion, we do not wish to be understood as expressing any opinion as to the consequence of an omission to plead, during her minority, her infancy in actions! like the present

4. As tbe husband, by virtue o£ Ms marriage, was vested with an estate during its continuance.in his wife’s real property, the court should have proceeded in the suit and condemned that interest to sale. Moreover, as there was. personal service of the writ, the plaintiff was entitled to a general judgment, and therefore, though the mortgaged property failed to satisfy it, he would have been entitled to execution against any other property belonging to the mortgagor.

4. We do not see the propriety of making the sheriff a party to this suit, who was charged with the duty of making sale of the mortgaged premises in another suit for partition. The object of this step, it seems, was to subject the money arising from the sale in partition to the satisfaction of the judgment in this cause, or at least such portion of it as the defendants would be entitled to. Such a course would lead to inextricable confusion, and there is no warrant in law for it. The plaintiff in this suit will sell such interest as the mortgagor had in the mortgaged premises, and the purchaser, after he has obtained his deed, will assert his rights against those claiming under the sale in partition, as they would take subject to the mortgage, it having been recorded prior to those proceedings.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded.


author: Ryland, Judge,

text:
    Woodson, Respondent, vs. Scott, Appellant.
    1. The supreme court will not reverse a judgment for excessive damages un-Jess in a very clear case.

      Jippeal from, Pettis Circuit Court.

      W. Adams, for appellant.

      P. R. Hayden and J. W. Morrow, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

1. This is an action of slander. The jury found for the plaintiff, and assessed his damages at five hundred dollars.

The only point presented for our consideration is the amount of damages. The defendant alleges the damages' to be excessive.

The record shows the words to have been spoken in an angry quarrel between plaintiff and defendant, when each one was using slanderous and abusive words to and about the other.

In all such cases, the juries of the country are the most appropriate judges of the amount of injury sustained; and to them is properly assigned the authority and right to assess the consequent amount of damages therefor.

Whenever the courts below, who hear the cases, shall decline to interfere, by directing new trials, this court will feel itself warranted, in most cases, to let their judgments alone. We cannot say that the damages here are excessive, and unless we are satisfied that such is the case, we ought not to reverse. The judgment below is affirmed ;

Judge Scott concurring.


text:
    Overton & Wife, Respondents, vs. Davy’s Executor, Appellant.
    1. A will contained this clause : “ 1 wish all my money placed out on interest, on undoubted security, so that the interest may support my children not of age, until they become of age or marry.” Held, upon the marriage of one of the daughters, she became immediately entitled to her distributive share, although other children were not of age or married.

      Appeal from Jackson Circuit Court.

    This was a proceeding, originating by petition in the county court for an order upon the executor of Cornelius Davy, to pay over to Overton and wife, the petitioners, the wife’s distributive share of certain moneys in the hands of said executor. The order was made, and the executor appealed to the Circuit Court.
    The following facts were agreed upon : Davy died in 1852, leaving a last will. The clause upon which this controversy turns is contained in the opinion of the court. He left five children, one of whom, Elizabeth, after his death, married Overton, the petitioner, and three of whom were still minors and unmarried. Overton and wife have a child living. More than one year of the administration on Davy’s estate had elapsed when this proceeding was commenced, all the debts of the testator and specific legacies had been paid, and there remained in the hands of the executor the sum of $29,675.
    The Circuit Court affirmed the judgment of the county court, and the executor appealed to this court.

      Smart & Sheley, for appellant,
    contended that the money could not be distributed until the youngest child became of age or married. .

      J. B. Hovty, for respondent,
    insisted that Elizabeth became entitled to her share immediately upon her marriage.
   Ryland, Judge,

delivered the opinion of the court.

The proper construction of the will of Cornelius Davy, deceased, is the only point in this case for the consideration of this court.

The clause in the will about which the present controversy arose, is as follows : “I wish all my money placed out on interest, on undoubted, unquestionable security, so that the interest may support my children not of age, until they become of age or marry ; though my son, Allen, is of age, I wish his portion to be withheld until his habits be reformed, of which change my administrators will be the proper judges.”

The petitioners, Overton and his wife, who is a daughter of Davy, were married on the 21st of April, 1852, after the death of said Davy. They assert that Elizabeth’s interest became vested, under her father’s will, at her marriage with Overton ; and that they are entitled now to a distributive share of said money. The defendant, Waldo, as executor, denies this, and claims the right to hold the money at interest until the youngest child becomes of age or marries.

The county court ordered the executor to pay to the petitioners their distributive share of the money, being one-fifth part of about $30,000, all the debts and special legacies having been already paid off. Thé Circuit Court, in effect, affirmed the decision of the county court. The executor,, not satisfied with these judgments, appeals to this court.

1. That the plaintiffs are entitled to their distributive share cannot admit of a moment’s doubt. Why should the courts be called on to reject the words, “ or marry,” in the above clause? Why not reject also the first clause of the limitation, “ until they become of age ?” There is as much ground for the one as for the other. A plain man of common understanding cannot miss the meaning of this sentence in this will.

The testator designed to keep his -money out on interest, on good security, and designed to rear and support his children with the interest arising thereon, until they should become of age or marry, respectively.

It would be a strange • construction to say that this means until his youngest child should become of age, or until his youngest child should marry. Whichever event should happen first to any of his children, except Allen, the becoming of age or the marriage, then such child should be entitled to his or her distributive share. In Wells et al., v. Wells et al., (10 Mo. Rep. 193,) this court held, where a testator devised property to certain legatees, with a condition that, if “ either of such legatees should die before coming of age, or marriage, the portion of such legatee should be equally divided among the others,” that such limitation only extended to that contingency which may first happen ; and where one married, and then died before coming of age, the limitation, as to that estate, would not apply. The court, in that case, said, there were two events, either of which would free the estates of the children by the last marriage from any contingency, namely, the dying under age, or marrying. “ I know not, said Judge Scott, on what principle the limitation on a child’s estate would be continued after marriage under age, until his majority. Such a construction would, in the event of a child’s dying under age, leaving children, exclude them from the inheritance, which, surely, could never have been intended. The clear implication from the will is, that by attaining a majority or marrying, the estate of a child was freed from any limitation, and became absolute.” Apply the principles of this case to the one before us, and there cannot be a doubt as to the propriety of the judgment of the court below. The judgment below is affirmed ;

Judge Scott concurring.


author: Ryland, Judge.

text:
    Aiken, Plaintiff in Error, vs. Todd, Defendant in Error.
    1. Trial by court of an appeal from a justice, and no question of law saved. Judgment affirmed.

      Error to Jackson Circuit Court.

      JYapton, for plaintiff in error.

      J. W. Reid, for defendant in error.
   Ryland, Judge.

This case was commenced before a justice of the peace, taken afterwards to the Circuit Court, and in the Circuit Court it was submitted to the court for trial, without a jury. The court found for the defendant. A new trial was moved for and overruled, and the case brought here by writ of error.

From the record, it appears that the court was not called upon to declare the law on any point in the case, by either party. No objection raised to any evidence — no declaration as to the law asked of the court. Upon the evidence, the court found for the defendant, and nothing appears upon the record which would warrant the interference 'of this court. (See Sickles et al., v. Patterson, 18 Mo. Rep. 479. Haase v. Stevens, id. 476. Soutier v. Kellerman, id. 509.)

The judgment is affirmed ;

Judge Scott concurring.


text:
    Tally & Wife, Defendants in Error, vs. Thompson, Plaintiff in Error.
    1. Cwmingham v. Gray, ante, 170, affirmed.

      Error to Jackson Circuit Court.

    Petition by Tally and wife to enjoin the sale under an execution against Tally, of a slave, given to Tally’s wife upon her marriage. The marriage took-place in 1838. The debt upon which the judgment was rendered was contracted before the marriage. The judgment was rendered in 1843. The execution issued in 1853. The plaintiff was dead when the execution issued. These facts appear in the petition. A demurrer was filed and overruled.
    Napton, for plaintiff in error.
    The act of 1849 was only intended to operate upon such debts and liabilities as accrued after the passage of the act. Where a statute admits of a construction which will obviously steer clear of all constitutional objections, our courts have uniformly adopted such construction. To give the law in question here a retrospective operation would be to bring it in direct conflict with the state and federal constitution. (10 Mo. Rep. 517.)

      J. B. Hovey, for defendant in error.
    1. The petition was good without the facts demurred to. The'death of the plaintiff in the execution was a good ground for an injunction. '2. The statute of 1849 is constitutional — the same not affecting the obligation of contracts, but altering the remedy for enforc-. ing them. (4 Wheat. 122. 1 McLean, 35. 4 Watts & Serg. 220. 1 Plow. (U. S.) 315.)
   Ryland, Judge.

The question in this case is, whether the act of 5th March, 1849, concerning married women, and entitled An act to amend an act entitled An act to regulate executions,’ ” exempting certain property of the wife from certain debts of the husband, is designed to operate upon the debts and liabilities of the husband existing before the passage of the act, or only on such as accrued after the passage of the act.

This very question was settled by this court at the last term at St. Louis, in the case of Cunningham v. Gray.

It was held that the act had no effect on debts and liabilities existing at its passage ; it could only operate on such as accrue after the passage of the same. The judgment of the court below is therefore reversed, and this case, is remanded;

Judge Scott concurring.


text:
    Asbury, Defendant in Errror, vs. McIntosh, Plaintiff in Error.
    1. A surviving partner cannot appeal from the judgment of a county or probate court, allowing a demand against the effects of a firm in the hands of the deceased partner’s, administrator under the administration law. (K. 0. 1845.)

      Error to Jackson Circuit Court.

    This was a demand against the firm of J. W. & J. E. McIntosh, presented for allowance in the county court against the administrator of J. E. McIntosh, deceased, having in charge the effects of said firm. The entry upon the record states that J. W. McIntosh, the surviving partner, (who was not the administrator, ) appeared in court by his attorney and defended the demand, and the court found “ that the late firm of J. W. ,& J. E. McIntosh is indebted to plaintiff in the sum of $725, which said sum is by the court here allowed against the firm, to be paid out of the partnership assets,” &c.
    The surviving partner appealed to the Circuit Court, where his appeal was dismissed, and he brings the case here by writ of error.

      J. W. Reid, for plaintiff in error.
    1. This was a proceeding under color of the administration law, and under an erroneous practice that has grown up in some of our county courts of presenting demands for allowance, in form against the administrator of a deceased partner, but in fact against the partnership effects of the deceased and survivors. Now if the county courts have jurisdiction of such demands (which they have not by any provision of the administration law) then all parties interested have a right to come in 'and be made defendants ; for it is against a fundamental principle of law that the surviving partner should be concluded by a judgment against which he has had no opportunity to defend.

      W. Mams, for defendant in error.
    A writ of error will not lie, at the suit of a surviving partner, upon a judgment against the administrator of the deceased partner. (R. C. 1845, tit. “Administration,” art. 1, secs. 53 and 54. Art. 2, sec. 22. Art. 8, sec. 3.)
   Ryland, Judge,

delivered the opinion of the court.

1. From the statement in this case, it will appear at once that the judgment of the Circuit Court, in dismissing the appeal taken by the present plaintiff in error from the judgment of the county court, presents the only matter for our consideration.

Asbury having a demand against the firm of J. W. & J. E. McIntosh, presented it for allowance against the administrator of the estate of J. E. McIntosh, deceased. The administrator had charge qf the effects of the firm of J. W. & J. E. McIntosh, under the provisions of our statute concerning administration.

This statute requires the executor or administrator of the estate of a deceased member of a partnership to include in the inventory which he is required by law to return to the county court, the whole partnership estate, goods and chattels, rights and credits appraised at its value, as in other cases. The property thus appraised shall remain with or be delivered over, as the case may be, to the surviving partner, who may be disposed to undertake the management thereof, agreeably to the conditions of a bond which is required by law.

In case the surviving partner, having been duly cited for that purpose, shall neglect or refuse to give the bond required, the executor or administrator on the estate of such deceased partner, shall give additional bond, and forthwith take the whole partnership estate, goods and chattels, rights and credits, into his possession, and shall be authorized to use the name of the survivor in collecting the debts due the late firm, if necessary; and shall, with the partnership property, pay the debts due from the late firm, with as much expedition as possible, and return or pay to the surviving partner his proportion of the excess, if there be any.

Under the provisions of this law concerning administration of estates, the administrator of the deceased member of the firm of J. W. & J. E. McIntosh, had the management and control ,of the effects of the firm : he could collect debts due the firm, and pay debts due by the firm.

This being a demand against the effects of the firm, which was allowed in the proper court having jurisdiction over the matter, no other person is allowed to interfere and make himself a party to this proceeding. The administrator, under proper bonds, conditioned as the law requires, is the one party, and the claimant the other. The surviving partner is not per-' mitted to take part in the proceedings, as a party. He cannot appeal by swearing that he believes that he is aggrieved by the decision of the court.

In this case, the administrator, whose second bond is conditioned that he will faithfully execute that trust, and with no unnecessary waste or expense, may not feel at liberty to waste the estate in useless litigation, and consequently will not be willing to appeal, being satisfied with the judgment of the county court. Then no one else for him is permitted to appeal, nor is any one else permitted to sue out his writ of error. From the whole record in this case, we are satisfied that the Circuit Court acted legally in dismissing the appeal. Its judgment is therefore affirmed;

Judge Scott concurring.


text:
    Anthony, Defendant in Error vs. Rogers, Plaintiff in Error.
    1. A mortgagee in possession is liable to account £or all rents and profits received by him from the premises.

      Error to Buchanan Circuit Court.

    Tbis wa£ a bill in chancery filed by Anthony to obtain the title to a lot in St. Joseph. The facts appear in the opinion of Judge Gamble when the cause was formerly in this court. (17 Mo. Rep. 394.) After the cause was remanded, it was referred to a commissioner to take an account. It appeared in evidence before the commissioner that Rogers and McCauly, in an ejectment suit against Hill and Welding, tenants of the lot, had recovered sixty-six dollars, for the rents; also that after they recovered possession, they caused a ^ra-me ^.p.np.mept^to he erected on the lot, from which they received rents. Witness testified that this tenement was built in a cheap manner, and they did not regard it as a permanent improvement, but only intended to answer a temporary purpose. The commissioner charged the plaintiff with the cost of the tenement, and charged the defendants with the rents received from it, and also with the sixty-six dollars recovered in the ejectment suit. The defendants excepted to the report, but it was confirmed.
    Loan, for plaintiff in error.
    1. The plaintiff was not entitled to the benefit of the sixty-six dollars recovered by the defendants in an ejectment suit to which both he and Kennedy, his vendor, were strangers — recovered too, before plaintiff acquired any title. 2. The rule laid down by this court when the case was formerly here, does not require defendants to account for rents accruing from temporary improvements erected on the premises by themselves. (17 Mo. Rep. 394. 3 Littell’s Rep. 414.)

      Gardenhire, for defendant in error.
    1. The amount recovered by defendants in the ejectment suit against Hill & Welding was “income received by defendants from the property since they came into possession of it.” (17 Mo. Rep. B98.) 2. As the plaintiff was charged with the whole cost of the improvements, the defendants could not object that they were charged with the rents.
   RylaND, Judge,

delivered the opinion of the court.

We consider the item of sixty-six dollars, which the commissioner reported as a charge against Rogers and others, fully within the principles declared by this court in its opinion heretofore given. (See 17 Mo. Rep. 398.) The judgment of the court must, therefore, be affirmed, as 'this item of sixty-six dollars is the only one about which any question arises ;

Judge Scott concurring.


text:
    Matthews et al., Appellants, vs. Rountree’s Administrator, Respondent.
    1. The supreme court will not reverse a case because the plaintiff did not swear anew to his petition after an amendment in the caption.
    2. The supreme court will not reverse because the inferior court refused time to answer after the overruling of a motion to dismiss for frivolous reasons.

      •Appeal from Polk Circuit Court.

      F. P, Wright, for appellants.
    1. The court had no right to render judgment upon the amended petition until it was verified by affidavit. 2. The court erred in refusing to give defendant time to plead after the amendment.
    No appearance for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The plaintiff began his action in the Circuit Court of Polk county, thus : “ Thomas Rountree, administrator of the es» tate of Charles Rountree, deceased, against William R. Matthews ‘and Isaac P. Russell. In the Polk Circuit Court, April term, 1854.”

“ Plaintiff states that defendants, by their promissory note, promised,” &c., making a good statutory petition, and asking judgment for the amount of the debt and interest. The defendants appear and file their motion to dismiss the action, because the petition does not specify the county in which the action is brought, and because the petition does not specify who is plaintiff nor who is defendant. The plaintiff asked leave to amend his petition, by adding the word “plaintiff” in the caption, after the word “ deceased,” and the word “ defendants” after the name of “Russell;” and also after the words, “In the Polk Circuit Court,” the words “ County of Polk, state of Missouri.” The court sustained the plaintiff’s motion, granted leave to amend, and the amendments were made by the addition of the proposed words to the original petition, and overruled the defendants’ motion to dismiss.

The plaintiff did not swear to his amended petition. Matthews, the defendant, objected to these rulings of the court, and excepted. The defendants failed to answer ; they asked for a continuance until next term ; it was denied them ; they asked for leave to answer in ten days ; it was denied them ; thereupon, they failed to answer. The court asked the counsel of defendants if they had a valid defence. The counsel refused to answer. The court then gave judgment for the plaintiff for want of an answer. The defendants moved in arrest of judgment, and filed eight reasons, none of which deserve to be noticed. This motion was overruled, excepted to, and defendants bring the case here by appeal. There is nothing in this record deserving the consideration of this court. The whole of the defendants’ objections, and their reasons for dismissing the action, are of the most trivial kind — mere quibbles, which should never be tolerated in a court of justice. Let the judgment be affirmed ;

Judge Scott concurring.


text:
    Byars, Defendant in Error, vs. Doores’ Administrator, Plaintiff in Error.
    1. A note was signed “ A. B., attorney for C. D.” Held, A. B. was personally liable in an action upon the note upon proof of his want of authority.

      Error to Jackson Circuit Court.

    This was a demand exhibited for allowance in the county court against the estate of Walker Doores, founded upon the following note:
    “ One day after date, I promise to pay Edmund Byars four hundred and six dollars for Elias Fisher, French Doores and H. H. Southworth, being money advanced by said Byars in a suit for the above named. “ Walker Doores, Attorney for Elias Fisher, French Doores, and Hunter H.
    Southworth.”
    At the trial in the Circuit Court, this note was read in evidence, although objected to. The plaintiff then offered evidence tending to show that Walker Doores had no authority from Fisher, French Doores, or Southworth, to execute said note as attorney or agent. An exception was taken to the admission of this testimony. There was a judgment for the plaintiff.
    JYapton, for plaintiff in error.
    1. The note sued on is not the note of Walker Doores. It is and purports to be the note of Elias Fisher, French Doores and H. H. Southworth. (Combe’s case, 9 Co. 77 a. Wilkes v. Bush, 2 East, 141. Spikle v. Lavender, 2 B. & B. 452. Long v. Colburn, 11 Mass. Rep. 97. 12 Mass. 237. Ballou v. Talbot, 16 Mass. 460.) 2. If the note was signed by Walker Doores, without authority, his administrator is responsible for damages in an action on the case, but not in an action on the note. (11 Mass. 97. 16 Mass. 460.)

      W. Mams and E. JR. Hayden, for defendant in error.

      1. The defendant’s intestate was the maker of the note sued upon. It was a contract by Mm on his own account to pay the sum specified for Eisber, French Doores and Southworth. (2 Kent’s Comm. 631. White v. Skinner, 13 Johns. Rep. 307.) 2. Even if the note had been given by the intestate as an attorney, yet, having no authority to act as such, he wouM be personally liable. (12 N. H. Rep. 191. 9 N. H. 58 and 59, 3 Johns. Cases, 70, 71. 1 Am. Lead. Cases, 458.)
   Scott, Judge,

delivered the opinion of the court.

1. It must be confessed that the question involved in this case has received different determinations by the courts in the United States. But the weight of authority is decidedly in favor of the view of the question entertained by the court below. On written contracts made by an agent without authority, if his name does not appear in the contract, and he contracts for his principal only, an action against him on such contract will not lie ; but an action on the case for his wrongful act, in assuming to contract for another without authority, is the only remedy. But if an agent, acting without authority in attempting to bind another, although his name appears as agent for the principal, yet, if he does not employ language which will exclusively bind the principal, or if, rejecting the words which he had no authority to use, enough will remain to create a promise on his part, he will be personally liable on the contract.

This seems to be the rule deduced from the American cases, and they clearly overthrow the case of Ballou v. Talbot, (16 Mass. Rep. 461. American Leading Cases, 457.) In the case under consideration, if we reject the false description — the agent appended to his name, there is a contract on his part te pay the money sued for.

Judge Ryland concurring,

the judgment will be affirmed.