text:
    Goode and others, Appellants, v. Goode and others, Respondents.
    1. A court of equity has no jurisdiction to reform a will on the ground of mistake by the draughtsman in drawing the same.

      Appeal from Franklin Circuit Court.

    Petition to the Franklin Circuit Court praying for the reformation of a will. The petition is as follows : “ Plaintiffs state that John Goode, late of the county of Franklin, departed this life on or about the 18th day of April last, leaving a writing purporting to be his last will and testament, bearing date July 12, 1854, with a codicil thereto annexed bearing date April 16, 1855, which writing was admitted to probate on or about the 2.7th day of April, 1855, and upon which letters testamentary were granted on the day last aforesaid to Edward J. Goode and Flavius J. North, who were by said writing appointed his executors ; the original of which writing is herewith exhibited. Plaintiffs state that that portion of said writing, a copy of which is given below, is not and was not at time of the execution of said writing the last will and testament of the said John Goode, but the same was inserted in said writing by a mistake of the draughtsman, and escaped the notice of the said testator at the time it was read over to him and signed and acknowledged by him. The portion of said writing which is not the will of the said John Goode is as follows : ‘ The purchase money of which [that is, of mill farm and tract and mill] (with the exception hereafter made) my said executors shall distribute equally to my sons Langston and Nathaniel, and my daughters Frances, Virginia and Margaret, share and share alike.’
    “ Plaintiffs aver that the names of Langston and Nathaniel, and Frances, Virginia and Margaret, were inserted in said clause, above set out, by mistake, and at.the time of the execution of said writing he thought and believed, and to the time of his death he thought and believed he had devised said purchase (excepting the ¡§2500) to all his children, share and share alike, the children of a deceased child taking the share of their parent; that said will, as it stands in connexion with the codicil, is ambiguous, uncertain and contradictory as to said clause, and the same can not receive a sensible construction, if the clause above set out be not reformed. Plaintiffs pray that the probate of said writing, as to the part set forth, may be set aside, and said writing so corrected and reformed as to become the true last will and testament of the said John Goode, and that the same,' as reformed and corrected, be admitted to probate, and for such other and further relief as the facts of the case shall warrant.”
    The whole passage, from which above extract is taken, is as follows : “It is my will, and I authorize and empower my executors, to sell and convey in fee simple, to the best purchaser, my mill farm and tract and mill, situate on the Bourbeuse river, the purchase money of which (with the exception hereafter made) my said executors shall distribute equally to my sons Langston and JYathaniel, and to my daughters Frances, Virginia and Margaret, share and share alike. And twenty-five hundred dollars of the said purchase money ($2500) shall be held in trust by said executors for my sons Langston and Nathaniel, and my daughters Frances, Virginia and Margaret, and the same shall be by my executors loaned; and the interest upon the said sum, to-wit, $2500, shall be collected annually and paid over to my daughter Agnes Gregory, and to John J. Goode, as maintenance during their lives; and at their death the said $2500 shall be distributed to my sons Langston, Nathaniel and John J. Goode, and to my daughters Frances, Virginia and Margaret, share and share alike.” “After all the bequests are paid and satisfied, the residue and remainder of my estate I wish distributed among all my children, share and share alike.”
    The petition was demurred to by the defendants ; the demurrer was overruled, and judgment given for defendant; defendant appealed to this court..

      T. Polk, Frissell and C. Jones, for appellants.
    1. For the purposes of this case it stands admitted by the record that the mistake set out in the petition was in point of fact made, and in the manner there stated. Now one of the grand branches of equity jurisdiction is mistake. (1 Story’s Eq. § 110, et seq.) 2. A mistake in the name of a devisee may be corrected. (Beaumont v. Fell, 2 P. Will. 140 ; Dowset v. Sweet, 1 Ambler, 175 ; Parsons v. Parsons, 1 Yes., jr., 266 ; Smith v. Coney, 6 Yesey, 42.) 8. So, a mistake in the number of the devisees may be corrected. (Stebbing v. Walkey, 2 Bro. Ch. 85; 2 Yesey, 560 ; Tomkins v. F., cited 3 Atk. 257; Hampshire v. Pierce, 2 Yesey, sr., 216.) 4. So a mistake in the thing willed may be rectified by a court of equity. (Selwood v. Mildway, 3 Yesey, 306 ; Riggs v. Myers, 20 Mo. 239.) 5. The court below should have held that so much of the writing as is a mistake, and was inserted in the testator’s will by the draughtsman, through mistake, was not a part of his will, and should not have sustained the demurrer. (Hippesley v. Horner, in note to Turner & Rus. 48, 11 Eng. Chan. R. 28.) And by declaring the portion of the writing, inserted in the will by mistake, not to be a part of the testator’s will, the intention of the testator, as shown by the petition, and as is admitted by the demurrer, would have been completely carried into effect. For, by a subsequent clause in the will, all his children, share and share alike, are made residuary legatees ; and the clause that was inserted in his will by mistake gives the purchase money of the mill tract, farm and mill (which he willed to be sold) to a part of his children, Langston, Nathaniel, Frances, Yirginia and Margaret, instead of to all of his children, share and share alike, as it was the intention of the testator it should have been. 6. The will, as it stands in connection with the codicil, is contradictory and in conflict with the codicil, and said will and codicil can not have a sensible construction together, unless the portion of the will inserted by mistake be held to be no part of the testator’s will. 7. It is admitted by the record that said will, as it stands in connection with the codicil, is ambiguous and uncertain, and contradictory as to said clause, and the same can not receive a sensible construction if the clause set forth in the petition be not reformed. (See Wigram on Wills, 170, 172; Jarman on Wills, 160, 318; 20 Mo. 239 ; Ram on Wills, 272 ; Flood v. Hawser, 1 Nott & MeC. 321; 1 Sto. Eq. 179, 183 ; 2 Yerm. 517 ; 6 Term R. 671; 1 P. Wm’s, 421; 2 P. Win’s 209 ; 2 Vern. 593 ; 1 Bro. Oh. 223 ; 6 Yes. 385 ; 1 Williams on Exec’rs, 299.)

      Stevenson and Johnson, cited Williams on Executors, 299; 1 Jarm. on Wills, 347, note ; 2 Rop. on Leg. 320-2 ; R. O. 1835, statute of wills, § 4.
   Ryland, Judge,

delivered the opinion of the court.

Some time in April, 1855, John Goode died in Franklin county, having previously made his last will, with a codicil thereto. This will and codicil were admitted to probate about the last of April, 1855 ; and this petition is brought by some of the legatees of said John Goode to reform the will, so as to make it córrespond with the alleged intention of the testator.

To this petition a demurrer was filed, which was sustained by the court below, judgment rendered thereon for defendants, and the plaintiffs bring the case here by appeal.

This action is substantially a proceeding to correct a mistake in a will, and we hesitate not to declare that such a proceeding can not be allowed or sustained ; and, consequently, that the Circuit Court decided the case properly, and its judgment must be affirmed.

Adams, in his treatise on Equity, p.'172, says.: “ A will can not be corrected by evidence of mistake, so as to supply a cause or word inadvertently omitted by the drawer or copyer; for there can be no will without the statutory forms, and the disappointed intention has not those forms. But it seems that if a clause be inadvertently introduced, there may be an issue to try whether it is part of the testator’s will.” Jarman says : “ Evidence is not admissible to supply any clause or word which may have been inadvertently omitted by the person drawing or copying the will.” (1 Jarman on Wills, 353.) In Mann et al. against the executors of Mann et al. (1 Johns. Ch. Rep. 231,) Chancellor Kent says: “It is a well settled rule that seems not to stand in need of much proof or illustration, for it runs through all the books, from Cheny’s case (5 Coke, 68) down to this day, that parol evidence can not be admitted to supply or contradict, enlarge or vary, the words of a will, nor to explain the intention of the testator, except in two specific cases : 1st, where there is a latent ambiguity arising dehors the will, as to the person or subject meant to be described; and, 2d, to rebut a resulting trust: all the cases profess to proceed on one or the other of those grounds.” After citing a list of authorities on the doctrine, he proceeds : “ If there be a mistake in the name of the legatee, or there be two legatees of the same name; or if the testator bequeath a particular chattel, and there be two or more of the same description; or if, from any other misdescription of. the estate or of the person, there arises a latent ambiguity, it may and must be explained by parol proof, or the will would fall to the ground for uncertainty. When a latent ambiguity is produced, according to the language of the courts, (Lord Thurlow, in 1 Ves. jr., 259, 261, 415, and Lord Kenyon, in 7 Term Rep. 148,) in the only way in which it can be produced, viz., by parol proof, it must be dissolved in the same way ; and there is no case for admitting parol evidence to show the intention upon a latent ambiguity on the face of the will. They are all cases of latent ambiguity, and the objection to supply the imperfection of a written will, by the testimony of witnesses, is founded on the'soundest principles of law and policy. ‘It would be full of great inconvenience,’ say the justices in Cheny’s case, ‘ that none should know by the written words of a will what construction to make or advice to give, but that it should be controlled by collateral averments out of the will;’ and if collateral averments be admitted, to use the words of Sir Mathew Hale, in Fry and wife V. Porter, (1 Mode, 310,) ‘ how can there be any certainty? A will may be any thing, every thing or nothing. The statute appointed the will to be in writing, to make a certainty; and shall we admit collateral averments and proofs, and make it utterly uncertain ?’ ”

Chancellor Kent says : “ Perhaps a solitary dictum, may occasionally be met with (for there are volumes of cases on the subject of wills, immensus aliarum super alias cumulus') iu favor of the admission of parol proof to explain an ambiguity or uncertainty appearing on the face of a will; though Lord Thurlow says there is no such case. If there be, we may venture to say it is no authority ; the only apology for personal proof in any case is the necessity of the thing, because the ambiguity is so complete as to elude all interpretation, and would destroy the devise altogether unless explained.” Andress v. Weller, 2 Green’s Ch. Rep. 604, supports the same doctrine.

Judge Story, in his equity jurisdiction, (1 Sto. Eq. § 179,) says : “In regard to mistakes in wills, there is no doubt that courts of equity have jurisdiction to correct them when apparent on the face of the will, or are to be made out by construction of its terms ; for, in eases of wills, the intention will prevail. But, then, the mistake must be apparent on the face of the will, otherwise there can be no relief ; for, at least, since the statute of frauds, which requires wills to be in writing, (whatever may have been the case before the statute,) parol evidence, or evidence dehors the will, is not admissible to vary or control the terms of the will, although it is admissible to remove a latent ambiguity.”

Parol evidence of the intention of the testator is inadmissible to vary the express terms of a will. (Avery et ux v. Chappel, 6 Connec. 270; Earl of Newburgh v. Countess Dowager of Newburgh, 5 Maddox Ch. R. 364.)

Apply the universally'admitted doctrine of courts of equity to this case now before us, about reforming wills or correcting mistakes in wills, and there will remain no doubt of the correctness of the decision of the court below.

Here, the parties (plaintiffs) seek to change a sentence or paragraph of the will of the testator, by adding the names of other legatees, so as to alter materially the bequests, — indeed, seek to cut out one paragraph in effect and set up a new one. Admit this doctrine, and you may as well repeal the statute requiring wills to be in writing, at once. Witnesses will then make wills and not testators.

Upon the full examination of this case, and the law arising on it, there can be no doubt of the correctness of the judgment of the court below, and it is affirmed by all the judges.


source: Caselaw Access Project

author: Leonard, Judge,

license: Public Domain

text:
    County of St. Charles, Appellant, v. Powell, Respondent.
    1. The rule of the common law, embodied in the maxim "rmlhim tempas occurrit regí,” and adopted generally in this country, applies only to the state at large, and not to the political subdivisions thereof. The statute of limitations runs against the municipal corporations and other authorities established to manage the affairs of the political subdivisions of the state, as against private individuals. The immunity was at common law an attribute of sovereignty only.
    2. The sums received by the several counties of this state out of the "road and canal fund” under the several acts of the general assembly, (see R. C. 1835, p. 553; Sess. Acts, 1836-7, p. 108-9,) belonged exclusively to the counties, though affected with a trust for local purposes ; and the statute of limitations would run against the said counties on bonds executed in their favor by persons to whom portions of said fund had been loaned.
    3. The fact that the obligor of such a bond becomes a judge of the county court, before the time of the limitation, ten years, expires, will not deprive him of right to set up the statute as a bar to a recovery.

      Appeal fr.om St. Charles Circxdt Court.

    This was a suit commenced April 19, 1855, founded upon the following obligation : “ $175. Twelve months after date, we or either of us promise to pay to the County of St. Charles, one hundred and seventy-five dollars, to bear interest at the rate of ten per cent, per annum from date till paid, it being for that amount borrowed of the road and canal fund of said county. Witness our hands and, seals this 5th day of February, 1841. [Signed] Ludwell E. Powell, (seal). T. Yosti, (seal). Wm. Echert, (seal).”
    It was alleged in the petition that the defendant, Powell, was justice of the county court of St. Charles county, from 1850 to September, 1854, “ and as such, with his associates, had the control and management of all bonds, notes and evidences of debt due said county for tbe use of the road and canal fund.”
    The defendant relied in his answer upon the statute of limitations.
    Upon the trial, the bond above set out was proven and given in evidence ; also an endorsement upon the same of a credit of ¡$8 75, paid June 29th, 1842. It was also proven that Powell was elected justice of the county court of St. Charles county, in August, 18'50, and was presiding justice of said court until September, 1854.
    Upon this proof, the court gave judgment for the defendant on the ground that the debt was barred by the statute of limitations.

      C. C. Whittelsey and T. Cunningham, for appellant.
    1. The county of St. Charles holds the road and canal fund for the benefit of the state, and against the state the statute of limitations does not run. ‘ ‘ JV'ullum tempus occurrit regi.” (Broom’s Legal Maxims, 27 ; Parks v. State, 7 Mo. 194 ; Marion county v. Moffett, 15 Mo. 605 ; State v. Fleming, 19 Mo. 607; United States v. Kirkpatrick, 9 Wheat. 720 ; 15 Mo. 604; R. C. 1885, p. 554 ; 3 Statutes at large, 674.) 2. The defendant should not be permitted to avail himself of the time during which he was the justice of the county court. If any thing, its neglect should be considered as a presumptive new promise, as he had the authority and influence to stay suit. The payment was made in June, 1842, and ten years from that date would have given him the right of action until June, 1852, and for nearly two years after that time the defendant prevented suit, and the county should have that time to sue after he ceased to be a justice. The new county court ordered suit brought when they found the bond unpaid and still due. The principle should be applied that a trustee shall not avail himself of the statute while trustee. (Taylor v. Blair, 14 Mo. 437.) As a justice of the court, he should certainly be considered as placed in a position of trust, which should forbid his doing any thing to the injury of those with whose interests he stood charged. Upon these principles, therefore, the answer should have been overruled, and the issue should have been found for the plaintiff, and judgment given for the face of the bond, with interest.

      J. Coalter and Alexander, for respondent.
    The two grounds on which it is supposed that the statute will not run in this case are, 1. That the note was given for the benefit of the road and canal fund, and that said fund belongs to the state, and therefore the note can not be barred. This is not true in point of fact; the fund has been distributed among the several counties of the state, with no provision that it shall ever, in any event, revert to the state. (R. C. 1835 and 1845, tit. “ Road and Canal Fund.” 2. The other point, that the statute will not run, because the defendant was from 1850 to 1854 justice of the county court, is equally untenable. He was one of the three justices, and, of course, did not control the court. No order of the court was necessary to the institution of a suit against him. Besides, the statute of limitations commenced to run February 5, 1842, more than eight years before he was elected justice, and having once commenced running, did not stop. (See Saunders v. Perkins, 12 Mo. 238 ;• Smith, adm’r of Taylor, v. Newly, 13 Mo. 159.)
   Leonard, Judge,

delivered the opinion of the court.

In 6 Bacon’s Abr. tit. “ Prerogative,” E. 5, it was said that when a statute is general, and thereby any prerogative, right, title, or interest is divested or taken from the king, in such case the king should not be bound, unless the statute is made by express words to extend to him. It is upon this principle that, by the English common law, statutes of limitations do not apply to actions brought by the crown, unless there be an express provision including it; and Story (United States v. Hoar, 2 Mason, 312,) after referring to the reason given by Blackstone (1 Com. 247,) says that the true reason of the king’s prerogative, “ nullum tempus occurrit regi,” is to be found in the great public policy of preserving the public rights, revenues and property from injury and loss by the negligence of public officers. But whatever the reason of the prerogative may have been, it was originally adopted, it is believed, in all the American states, governed by the common law. It seems, however, to have had no place in the Roman law of the prescription of actions, except to enlarge the time within which the public authorities, both general and local, were required to bring their suits. (1 Mackeldey’s Civil Law by Kaufman, 200, 202.) The new French code expressly renounces it (Civil Code, sec. 2227) ; and our own state has recently done so too. (Practice Act, 1849, art. 2, § 10.)

The immunity, however, it seems, was, even at common law, an attribute of sovereignty only, and did not belong to the municipal corporations or other local authorities established to manage the affairs of the political subdivisions of the state. It was so expressly held in the Lessee of the city of Cincinnati against the First Presbyterian church, (8 Ohio, 809,) and in Armstrong v. Dalton, (4 Dev. N. C. 569) ; and we are not aware of any case to the contrary. In Marion county against Moffett, (15 Mo. 604,) the omission of a public functionary to do an act required by law for the security of the public interest, was not allowed to operate as a release of the security; but the decision had nothing to do with the application of the statute of limitations to cases of that character. The money here sued for belonged to the county and not to the state at large. It was vested in the county by a legislative donation— impressed, it is true, with a trust for local improvements ; but yet it belonged exclusively to the county, although for local and not for general purposes.

It is scarcely necessary to remark, that the fact that the defendant was a member of the county court during part of the time of the bar, is no answer to the statute. If the defendant has been guilty of such conduct in the discharge of his official duties as to render him amenable to the law, he must be called to answer in a proper proceeding instituted for that purpose. The judgment is affirmed.


author: Ryland, Judge,

text:
    Green, Respondent, v. Moffett & Stillwell, Appellants.
    1. By the statute law of this state (see sess. acts, 1841, p. 86 ; R. C. 1845, p. 1077,) a “ ton” of hemp is 2000 pounds avoirdupois and not 2240 pounds.
    2. Evidence to the effect that by custom or mercantile usage a “ton” of hemp consists of 2240 pounds instead of 2000 pounds, is not admissible in the interpretation of contracts.

      Appeal from Hannibal Court of Common Pleas.

    This is a suit brought to recover a balance of money claimed to be due upon hemp delivered to defendants under a contract of which the following are the material portions : “ Hannibal, Missouri, April 14, 1852. This agreement, this day made and entered into by and between Erasmus M. Moffett and Brison Stillwell, of the first part, and William N. Green, of the second part, witnesseth: that said Green has this day sold to the said Moffett and Stillwell thirty-five tons of hemp of the best quality brought to this market (except choice selections), to be baled in sound and clean second hand gunny bags, for which the said Moffett & Stillwell are to pay said Green seventy dollars per ton; also fifteen tons of hackled hemp, at one hundred and ten dollars per ton, of strictly choice quality and thoroughly cleansed, to be as nearly uniform in color as practicable, to be put up in new gunny bags, and the whole to be stored by the said Green in his brick warehouse, in, &c. The hemp to be delivered in lots of from five to ten tons into said warehouse, and the whole delivery to be made by the first of September next. One half of the money to be paid on each delivery, and the balance in two months after the final delivery, &c. In witness whereof, we have hereunto set our hands the day and year first above written. [Signed] E. M. Moffett, B. Stillwell, W. N. Green.”
    Upon this instrument there were the following endorsements : íÉ W. N. Green is hereby authorized to -deliver the thirty tons of hemp, named in this contract, without covers, the said Green to deduct one dollar per ton as a consideration. [Signed] B* Stillwell.” “Received of William N. Green, twenty-seven thousand nine hundred and two pounds of hemp on the above contract. October 1st, 1852. [Signed] E. M. Moffett, B. Stillwell.”
    It was admitted in the pleadings that the time within which the hemp was to be delivered was extended by the parties, and it was verbally stipulated that plaintiff might deliver said hemp at any time before November 18th, 1852.
    Plaintiff alleged in his petition that on the 1st day of October, 1852, he delivered to defendants 2287 pounds of hemp, covered with gunny bags, which, at the rate as specified in the agreement of $70 per ton, amounted to the sum of $80 04; that pn the same day he delivered to defendants 25,615 pounds of said hemp, not covered, at the rate of $69 per ton, amounting to the sum of $883 71 ; that the whole indebtedness thereby incurred amounted in the aggregate to the sum of $963 75. Plaintiff admitted the receipt from defendants, on account of the hemp delivered as above, o£ $450 25, and claimed judgment for a balance of $513 50.
    Defendants, in their answer, admit the delivery of the 27,902 pounds of hemp as stated in the petition; they allege that, at the time of the delivery, they paid plaintiff one half the contract price of the hemp delivered and twenty dollars by way of advance on the contract; this twenty dollars not being due to plaintiff when he received the hemp, but being advanced as a matter of favor. They further allege that they have at all times been ready, and willing to keep and perform all the stipulations of the contract, and have so kept and performed them so far as they were bound to do ; that plaintiff has not kept or performed said contract, but has broken and violated the same, in this, that plaintiff has done nothing towards fulfilling his contract, save the delivery to defendants of the 27,902 pounds of hemp, although, from time to time, before and on the said 13th day of November, 1852, he has been and was repeatedly requested by defendants to deliver them the hemp as he was bound by the contract to do ; he being at the same time informed that defendants were ready, able,' willing and anxious to pay him for the hemp, when delivered, so as in all things to comply on their part with the contract; that on the 18th day of November, 1852, defendants tendered to plaintiff in cash the sum of $1592 75, and offered to pay the same to him, provided he would deliver to them the said hemp, but plaintiff then and there failed and refused so to do. This sum of $1592 75 was the amount which it was estimated would have been due to plaintiff by said contract on said 13th day of November, had he then(delivered the hemp to defendants as by them requested. i
    Defendants also claim damages for the breach of the said contract; and allege a rise in the price of hemp between April 14th, 1852, the date of the contract, and November 13th, 1852.
    In an amended petition plaintiff alleged that he did deliver the hemp according to the terms of the contract, but that defendants refused to receive it, or to pay him or tender to him the amount due for said hemp according to the terms of the contract, or to pay him the amount due for the hemp received by them as set forth in the original petition; that he (plaintiff) complied in all respects with his stipulations under the contract, but that defendants wholly failed to comply with their obligations under said contract, or to pay plaintiff the money due him for said hemp under the terms of said contract.
    On the trial, evidence;was offered tending to show that plaintiff had stored in the warehouse named in the contract a quantity of hemp equal to that remaining undelivered under the contract; that he was ready, and willing, and offered to deliver to defendants the portion of the hemp so undelivered, upon the payment of the sum agreed upon in the contract, but that he refused to deliver the hemp unless he were first paid the money due under the contract upon delivery, with defendants’ notes, due sixty days from date, for the sum remaining unpaid. The evidence also showed that defendants offered to make the payments due under the contract upon the delivery of the hemp, but would not make any payments until the hemp should be delivered ; that on the 13th day of November," 1852, defendants offered to pay plaintiff the sum of $1592 75 upon delivery of the hemp remaining undelivered under the contract of April 14th, 1852, that being the sum estimated to be due plaintiff, in cash, upon such delivery; that plaintiff refused to so deliver, although delivery was demanded by defendants.
    Defendants offered the testimony of certain witnesses to prove, that by usage and custom of merchants and hemp-dealers in Hannibal and elsewhere in Missouri, a “ ton” of hemp has invariably been understood to mean 2240 pounds avoirdupois. The testimony was rejected by the court, and to its exclusion defendants excepted. Defendants also offered to prove by a witness that plaintiff had said in his presence and hearing that the word “ ton,” used in the contract sued on, was intended by both the parties, when they signed it, to mean 2240 pounds. This testimony was excluded on the objection of plaintiff.
    The evidence showed a rise in the price of hemp between April 14th, the date of the contract, and November 13th, 1852.
    The following instructions were asked by the plaintiff: “ No. 3. If the jury find from the evidence that the defendants received from Green, the plaintiff, 2285 pounds of covered hemp and 25,615 pounds of uncovered hemp on the contract read in evidence, they will find for the plaintiff the amount of said covered hemp, computing the same at $70 per ton, and said uncovered hemp at $69 per ton ; and estimating each ton to consist of 2000 pounds avoirdupois weight; deducting therefrom such amount as the defendants may have paid on account of the same. 4. The plaintiff (Green) had the legal right to retain the custody and possession of the hemp, after it was stored in the warehouse, until the defendants had paid the amount by the contract stipulated to be paid or tendered the same. 5. If the jury find from the evidence that the plaintiff (Green), from the 10th to the 13th of November, 1852, had stored in the brick house, in the contract named, 72,569 pounds of hemp, in accordance with his contract, and that he at the same time notified the defendants of his having the same stored as aforesaid, that this was a compliance on his part of the contract. 6. That before the defendants can recover any damages in this cause for a breach of the contract sued on, they must prove to the satisfaction of the jury, that after they were notified by the plaintiff (Green) of his having the hemp stored as aforesaid, they tendered to the plaintiff the full amount due to Green, as stipulated in the contract, to be paid when the same was delivered.” The court gave the instruction number 3, to which defendants excepted, and refused the other instructions, to which refusal plaintiff excepted.
    Defendants asked the following instructions: “ 1. The plaintiff had no right to demand of the defendants that they should pay him any money before he delivered them the hemp as called for in the contract; and if he refused up to the 13th of November, 1852, to deliver the balance of the hemp due, because defendants would not first pay him the one half of the contract price thereof, then such refusal was on his part a violation of the contract. 2. If the jury believe from the evidence that from the 10th to the 13th of November, 1852, the defendants were willing and able to receive from the plaintiff all the hemp then due on the contract, and pay him for the same, but that the plaintiff refused -to deliver the said hemp until the same was paid for by defendants, and so did not deliver the same, then such failure to deliver was on the part of the plaintiff a violation of his contract. 3. It is not necessary that the defendants should have made to the plaintiff an actual tender of the cash payment on the hemp stipulated for in the contract. It is sufficient, if it appear from the evidence in the cause, that the defendants were ready and willing to receive the hemp contracted for, and pay for it according to the terms of the sale, and that plaintiff had notice of such readiness and willingness ; and, if it so appears from the evidence, and that plaintiff was thereupon requested to deliver the said hemp, and neglected or refused to do so, then the jury should consider that the plaintiff broke the contract between him and defendants given in evidence, and give them such an amount of damage as has been the direct result of such breach of contract. 4. If the jury believe from the evidence in the cause, that the defendants were ready and willing to receive and pay, according to contract, for hemp which remained undelivered by plaintiff after the 27,902 pounds were delivered to defendants, and that plaintiff had notice that defendants were so ready and willing, but refused to deliver said hemp upon the ground that the defendants would not pay the deferred payment, or give a negotiable note therefor,' when delivery should be made, then the plaintiff has violated his contract, and the defendants are entitled to have allowed to them the difference between the price stipulated to be paid for said hemp and the price thereof in Hannibal at the time the same should have been delivered, according to the terms of the contract. 5. If the jury believe from the evidence and under the instructions given them by the court, that the plaintiff failed to deliver the hemp to defendants, as required by the contract, and so broke the contract, then the plaintiff can not in this action recover any thing from defendants for or on account of the 27,902 pounds of hemp which he delivered to defendants on the 1st of October, 1852, and the verdict must be for defendants. 6. If the jury should find that the plaintiff has violated his contract by failing to deliver the hemp thereby required, but that the defendants have in no way violated or failed to perform their part of the contract, then the jury may find for the defendants such damages as they sustained by means of the plaintiff’s failure to perform his part of the contract, and the measure of such damages is the difference between the contract price of all hemp the plaintiff neglected under and by the terms of the contract to deliver to defendants, and the market value of such hemp in Hannibal at the time the same should have been delivered to defendants by plaintiff.”
    The court gave instructions numbered 1, 2, 3, 4 and 6, to which plaintiff excepted, and refused the one numbered 5, to which refusal defendants excepted.
    The jury gave a verdict for the plaintiff for $128 75, and a motion for a new trial, made by defendants, having been overruled, defendants appealed.

      Porter and Richmond, for appellants.
    1. The plaintiff was not entitled to be allowed any thing for his part compliance with the contract, the failure to deliver the residue of the fifty tons of hemp (over and above the 27,902 pounds, delivered and paid for, so far as required by the contract) not being excused’ by any default or failure of the defendants in the premises. It is insisted, in view of the terms and stipulations of the contract in issue, that the defendants have not waived its entirety, and that, being a special contract, plaintiff must have shown a compliance on his part before he could recover any thing. (12 J. R. 94.) 2. The evidence offered by defendants to show that by the custom and usage of trade, invariable and uniform, “ the ton of hemp” meant 2240 pounds avoirdupois, and not 2000 pounds, as plaintiff contends, should have been permitted to go to the jury. Also, the evidence offered on the same side tended to show that the parties both understood the contract and originally intended to carry it into effect, according to said usage and custom, should have been admitted. And for the like reason the third instruction asked by plaintiff should have been refused. (1 Greenl. Ev. § 292, 293, 294, 295, and note 1; Soutier v. Kellerman, 18 Mo. 509.) 3. The stipulations of the parties in the written contract sued on, were mutual and dependent. No actual tender of the purchase price, therefore, was requisite on behalf of the defendants, before plaintiff was bound to deliver the hemp sold, and promised to be delivered at a place designated in the contr ct. It was enough that defendant showed (as he did) that they were ready, willing and able to pay according to the said contract. The plaintiff’s instructions on this point were rightly refused. (1 Chitty’s PI. 856, 6th Am. ed., and authorities cited ; Labeaume v. Hill & McKeese, 1 Mo. 42.)

      J. O. Broadhead, for respondent.
    The only questions properly presented by the record are those arising out of the 3d instruction given for plaintiff, and the 5th instruction asked by the defendant, and refused by the court. 1. Plaintiff contends that the word ton, as used in the contract sued upon, means 2000 pounds avoirdupois. (SeeR C. 1845, p. 1077,) and that the court was right in excluding all evidence tending to show that, according to mercantile usage, the ton consists of 2240 pounds. The appropriate office of a usage is to interpret the otherwise indeterminate intention of the parties, and to ascertain the nature and extent of their contracts, arising from implications and presumptions. (2 Sumn. R. 569.) No usage can be sustained in opposition either to the general principles or the positive enactments of the law. (Ohitty on Cont. 82, and note; Smith’s Mercantile Law, 29; 10 Mass. 29.) 2. The court was right in refusing the 5th instruction asked by defendants.' The contract is not entire, but is divisible. But even if it were an entire contract, the defendants themselves have destroyed its entirety by accepting part performance, receiving the hemp, and retaining the benefit of it, and must pay for what they have received. (Chitty on Cont. 737 ; id. 446; 18 Pickering, 555.)
   Ryland, Judge,

delivered the opinion of the court.

The questions in this case involve the proper construction of the contract, and also the meaning, as therein used, of the word “ ton,” under the statute. We have no doubt hut that, under the contract and proof made in this case, the plaintiff is entitled to have pay for the hemp delivered, and received by the defendant, according to its value ; not according to the contract price. The contract was broken, not fulfilled ; and, although the plaintiff delivered and the defendant received hemp, yet the price agreed upon in the contract' is not to govern in estimating its value at the time of its delivery and acceptance, but the real value of the article delivered and received is to be the criterion. Under this view of the law, then, the third instruction given by the court for the plaintiff, fixing the contract price as the value of the hemp, is erroneous ; but this error does not prejudice the defendant in this case, for the proof shows, beyond doubt, that this contract price was less than the real value of the hemp ; so the defendants have been benefit-ted, not injured by this error, and can not complain thereof. Again, although this third instruction given for the plaintiff is incorrect, yet its error is rendered innoxious by the 6th instruction given for the defendant. There was but one instruction given for the plaintiff — the third — as set forth in the statement of the case, and but one refused for the defendants — the 5th— as mentioned in the statement.

It was competent for the defendants to set up by way of defence the breach of this contract on the part of plaintiff, and the rule for assessing the damages is well laid down in- the 6th instruction given by the court for the defendants. There is no error, then, in these instructions upon this view of the case; and had this been the whole dispute between these parties, we, in all probability, should have never seen this case.

But there is another cause of complaint, and, we presume, the chief one ; it is the meaning of the word “ ton,” as given by the court to the jury. The court informed the jury that, under our statute law, a ton of hemp meant 2000 pounds avoirdupois, and not 2240 pounds. On this point, too, the law is for the plaintiff, and was properly laid before the jury. In February, 1841, the legislature declared, by express statute, that “hereafter, when sales of hemp shall be made, the delivery of one hundred pounds avoirdupois weight shall be considered as the delivery of one hundred weight, any custom or usage to the contrary notwithstanding.” (Sess. Acts, 1841, p. 86.) In 1845, (R. C. p. 1077,) the legislature again say: “ The hundred weight shall consist of one hundred pounds avoirdupois, and twenty such hundreds shall constitute a {ton.’ ” Here is the statute law of the land since 1841, and shall it be proved away by custom ? The lawmakers struck at this custom, this usage, and by law abolished it. Now when parties make contracts about hemp, they can easily agree to pay or to take so much money for so many pounds of hemp ; but if the bargain be only by the ton,” then the law says what the “ ton” is, and no proof will he admitted about custom or usage or understanding — the contract can be proved, and when proved, if there appear a buying and selling by the hundred weight or by the ton, the law fixes a meaning to these terms; and when the law is appealed to for the remedy, it applies its own meaning. Let the judgment therefore be affirmed;

the other judges concurring.


text:
    Morgan, Defendant in Error, v. Bowman, Plaintiff in Error.
    1. Where one employs a person, carrying on a distinct trade or calling, to perform certain work for him, the employee being independent of the control of the employer, the latter is not responsible for any injury to third persons caused by the ne'gligence of the employee or his workmen.
    2. Where, however, the one employed to superintend the work to be done, is subject to the control of his principal, and is paid for his services by day wages, the principal is responsible for injuries to third persons caused by such employee or his servants.
    3. Qxiere, as to the soundness of the doctrine laid down in Wood v. Steamboat Fleetwood, (19 Mo. 529,) that an allegation of the value of property claimed by plaintiff, or alleged to have been destroyed, &c., by defendant, is not admitted if not denied.

      Error to St. Louis Circuit Court.

    In this suit, originally brought by Morgan against Bowman and one Greer, plaintiff sought to recover compensation for injuries sustained by him through the alleged fault of defendants, in carelessly and negligently causing certain goods belonging to plaintiff to be destroyed by fire when stored in a warehouse belonging to defendant (Bowman). The alleged negligence consisted in the careless management of a fire on the roof of said warehouse, used in boiling tar, pitch and other materials ; the defendant (Bowman) having employed said Grier to superintend the placing of a composition roof on said warehouse. The evidence, showing the relation that Grier sustained to Bowman, is sufficiently set forth in the opinion of the court. The suit was dismissed as to Greer.
    The petition contained the allegation, that on, &c., plaintiff “ was the owner of divers goods and chattels of great value, to-wit, forty-five packages of merchandise of great value, to-wit, of the value of four thousand five hundred and ninety dollars,” &c. There was no denial in the answer of this allegation ; nor was there any evidence given on the trial of the value of the property destroyed.
    It is not necessary to set forth the evidence given on the trial, as the only question raised upon that evidence was as to the responsibility of defendant (Bowman) for injuries caused by the negligence and carelessness of Greer.
    The questions of law discussed in this court arise upon the following instruction given on the motion of plaintiff : “It being admitted by the pleadings that plaintiff was the owner of goods of the value of $4590, which were stored in a house on Broadway ; that defendant (Bowman) undertook to repair the roof thereon, and employed and retained a person in that behalf, and such person engaged in said work; that while the same was progressing, fire and combustible material were used, by the person so employed by Bowman, near the roof of said house, the same not being fire-proof; that there was about and upon said house a large quantity of such combustible material at the time of using said fire, and the same was communicated to said material, and thereby said house and plaintiff’s goods were consumed; if the jury find that one Greer was the person so employed, and was by such employment to superintend said work, and to be paid by said Bowman by the day
      therefor; that said Greer, at the time of the burning said house and goods was so employed by the day, and was so superintending said work, and was therein guilty of gross negligence or unskillfulness or recklessness, and by means thereof said house and goods were burnt and destroyed, the jury will find for plaintiff the value of said goods, with interest thereon from the commencement of this suit.”
    There were certain instructions asked by defendant, and refused by the court, which it is unnecessary to set forth.
    The jury found for plaintiff, and assessed his damages at |4590.

      M. L. Gray, for plaintiff in error.
    The law is well settled that where one does work for another, as a contractor, the employer is not responsible for the acts of the contractor or those acting under him. Also, that where an injury is done by a person exercising an independent employment, the person employing him is not responsible. (Parsons on Cont. 86 ; Barry v. City of St. Louis, 17 Mo. 121 ; Milligan v. Wedge, 12 Adol. & Ellis, 787-40 ; Allen v. Haywood, 53 Eng. O. L. R. 959 ; Quarman v. Burnett, 5 Mees. & Weis. 499 ; Rafron v. Cubit, 9 id. 710 ; Redie & Hobbitt v. Lond. Railway Co. 4 Exch. 244 ; Knight v. Fox et aL, 1 Eng. L. & Eq. R. 480.) 1. Greer was a contractor under defendant, and not his servant in any such sense as to make defendant liable' for his acts. The true test of the existence of master and servant is the right and power of the employer to direct and control the employee. (Parsons on Cont. 86, and authorities above cited.) No such right was reserved to defendant in the contract between him and Greer, nor was any such control in fact exercised by defendant. The mere mode of payment is not and can not be the criterion or test by which to determine the relation of defendant to Greer. The employment of Greer at day wages will not make defendant liable, unless by the contract defendant reserved to himself the right of controlling or directing the work, or unless in point of fact the defendant did direct or control the work. (Parsons on Cont. 87, 93.) 2. Whether Greer was a contractor under defendant or his servant, was a question of fact that should have been submitted to the jury to find on the evidence. (Parsons on Cont. 92; 1 Moody & Robinson, 494.) The instruction given by the court took this question from the jury, and assumed that the employment of Greer, at daily wages, made him the servant of defendant, so as to make defendant liable for Greer’s acts and the acts of those he employed, without regard to the vital and essential fact whether defendant was to exercise or did exercise any control over Greer or those under him. 3. If Greer was not a contractor under defendant in such a sense as to exonerate him (defendant) from liability on account of Greer’s carelessness or the carelessness of those employed by him, yet Greer, in doing the work, was in the exercise of an independent and distinct calling or employment that relieved defendant from all liability for his acts. (Parsons on Cont. 89, note b. ; 12 Adolph. & Ellis, 40 C. L. R. 737 ; Barry v. City of St. Louis, 17 Mo. 121; De Forest v. Wright, 2 Mich. 368.)

      Glover & Richardson, Shepley and H. M. Jones, for defendant in error.
    This case turns mainly upon the instruction given for the plaintiff in the court below; for, if there is no error in that instruction, and it left the question of liability of the defendant to be fairly passed upon by the jury, there is no ground for reversal, although some one of the instructions asked for by the defendant might, without legal impropriety, have been given. 1. It was not incorrect to rule, that the allegation of value in plaintiff’s petition not being denied, was admitted. The decision of this question turns upon the meaning to be given to the term “ material,” in the 12th section of article 7 of the code, which provides that “ every material allegation in the petition, not specifically controverted as heretofore required, &c., shall, for the purposes of the action, be taken as true.” By section 7, art. 6, it is provided that “ the answer of the defendant shall contain, in respect to each allegation of the petition controverted by the defendant, a specific denial thereof, or any knowledge thereof sufficient to form a belief.” Under the old system of pleading, no issue was material unless it was decisive of the whole case. No issue could be taken upon allegations of value, in the common actions of assumpsit, trover, &e. The reason was, that the party denying the alleged value had no right, by “ traversing such allegations by a formal traverse, to compel the plaintiff to prove more than he would be bound to prove, if the defendant had pleaded the general issue only,” &c. (3 Saund. 207 a.) An allegation of some value was necessary, and in that sense it was then a material allegation ; but of course it need not have been proved as alleged. Questions of values, amount of damages, &c., were really and truly issues before the jury, although not such, in strict legal language, upon the face of the pleadings. The new system of pleadings, established by the code, was de-, signed to effect a fundamental change. The great object of this change was, as far as possible, to reduce the number of issues, so as to disencumber the causes to be submitted to the jurors for decision, by obtaining an admission of undisputed facts. In numerous instances, the value of goods delivered, or the items of an account, property conveyed, &c., would be well known to and peculiarly within the knowledge of the defendant ; and unless he (the defendant) is disposed to put such value in issue by denial, there is not and there can be no reason why this failure to deny should not be taken as an admission. Why confine the meaning of the term material allegation to its meaning under the old system of pleading ? So far as the question, what facts or allegations should be regarded as admitted is concerned, there seems to be no valid distinction between those allegations which go to the ground of the action, and those which go merely to the amount to be recovered. It is not contended that the mere claim to so much damages contained in the ad damnum clause, should be regarded as admitted unless denied. The prayer for relief is not a matter of allegation at all. The reasons are certainly very strong for holding that every allegation in a petition, not denied in the answer, is admitted, unless such allegation be immaterial in such a sense that the defendant is entitled to have it stricken out on motion. This would furnish us with a good test by which to determine whether an allegation is or is not material in the sense of the code. It can not, of course, be pretended that an allegation of value, such as that assumed to be material in the instruction we are now considering, would be stricken out on motion. Although there are some dicta in New York, in construction of a similar (the same, indeed) provision in the New York code, intimating that the rule is, as.it will undoubtedly be contended by the opposite counsel to be, in this state, yet the only decision that has been made upon the point is directly in favor of the view now contended for by defendant in error’s counsel. (See Archer v. Baudinet, 1 Code R., N. S.) This was an action to recover possession of personal property, and for damage for detention. Value of the property was alleged in the petition (and the allegation was not denied) to be fifty dollars. Woodruff, J., said: “For the purposes of this case, therefore, that sum ($50) is to be taken as the value of the property, and no other value could, with propriety, be adopted even by the jury.” Perhaps some fancied distinction may be attempted to be set up between this case and the present one, on the ground that it was required by the code that the petition, &c., for the possession of personal property, &e., must contain a statement of the value of the property claimed, &c. To this it is answered that an allegation of some value must be made, in cases like the present, or the court would not consider a party plaintiff entitled to set in motion the machinery of the law. The party being, then, compelled to state some value, must, upon his oath, state the true value. We are aware that in a case lately decided, this court has intimated an opinion opposed to the doctrine we are now contending for. (See Wood v. Steamboat Fleetwood, 19 Mo. 529.) 2. The ruling of the court, in the remaining part of the instruction we are considering, is correct. I. The general rule is, that a principal or employer is liable for all the tortious acts of his agent, employee, or servant, done in course of the agent’s or servant’s employment. This rule is generally stated thus : that the principal is liable, provided the relation of master and servant exists. This relation of master and servant exists in every case of agency unless the right of control or direction is taken away, so that any interference on the part of the principal would be a breach of a contract between the parties. II. The exception to the above rule is, that of one who engages by contract for the performance of work or business, and who, in the performance of that work, is engaged in a distinct and independent calling-. III. The calling or business of the employee, in order to be distinct and independent in such a sense that the employer would not be liable for the tortious acts of the employee, except where those acts were specially authorized, must be, 1st. A separate and distinct calling or profession peculiar to those who engage in it; as that of a builder, brick-maker, carpenter, &c. (Milligan v. Wedgo, 12 Ad. & El. 734-40; Laugher v. Pointer, 5 B. & O. 555.) 2d. It is necessary that the employee be employed in the performance of the work as contractor, i. e., that he take upon himself its performance, according to stipulations agreed upon, he not receiving mere wages for his services, or a salary, but being employed as a job contractor. (Martin v. Temperly, 42 B. 298, 312; Knight v. Fox, 1 L. & Eq. 474 ; Blake v. Ferris, 1 Selden, 62 ; Allen v. Hayward, 7 Q. B. 974.) 3d. The contract between the employer and the employee must be such that any interference with or exercise of control over the performance of the work, &c., would be a breach of such contract. (Allen v. Hayward, 7 Q. B. 974.) There may be reserved to the principal a right to inspect work done, or to dismiss incompetent workmen, or to suspend the performance of work. This alone would not make the principal liable, &c., provided there was no right under the contract to assume the general superintendence and control. (Reedie v. Railway Co. 4 Exch. 244, 258, perRolfe, B.; Barry v. City of St. Louis, 17 Mo. 121.) In no case has any principal escaped liability for the acts of his employee, except in case where such employee was a job contractor, in the exercise of a distinct calling. And the payment of a person for his services, by paying so much per day, constitutes him merely an agent for doing the thing agreed to be done. It rests upon the defendant to show that Bowman, the defendant, had no right to control the performance of the work to be done by Greer. The proof shows that Bowman at first applied to Greer for estimates of the cost of repairing the roof of the row of buildings burned ; that Greer made out' such estimates ; that Bowman, believing that the work could be done cheaper by doing it himself, hired Greer by the day to superintend the repairing, &c.; that the materials were purchased and paid for by Bowman, besides showing that Bowman was privy to and authorized the boiling of the composition upon the roof. The plaintiff’s instruction seizes hold of the fact, which is undisputed and uncontroverted, that Greer was employed by the day to superintend the repairing, &c., and founds upon it, together with facts admitted by the pleadings, the legal conclusion that the relation of master and servant existed, so that Bowman was liable for the acts of Greer. The fact that Greer was employed at day wages, is entirely inconsistent with his being a contractor by the job.
   Leonard, Judge,

delivered the opinion of the court.

The questions discussed here, in the application of the rule, “ respondeat superior,” is, whether the defendant, the owner of the building for whom the work was being done, was respon-' sible as master ; or whether Greer, whom the defendant had employed to have the work done for him, was alone liable, on the ground that the relation of superior and subordinate, within the meaning of the rule, did not exist between them. It was admitted in the answer that the defendant was the owner of the building ; that he had directed the roof to be repaired, and had engaged a person to have the work done, and the proof was, that the defendant declined employing Greer to do it by the job, on account of the price he asked, and employed him by the day, at an agreed price ; that Greer engaged the hands, &c., (the defendant paying them) and superintended the work as it was being done. Upon this proof, the court substantially instructed the jury, that if Greer was the person employed by the defendant, and by his employment was to superintend the work and be paid therefor by the day, the defendant was liable for the damages to the plaintiff that resulted from Greer’s negligence in the performance of the work. In this we concur, and of course the judgment must be affirmed.

The maxim to which we have referred is well settled, but the difficulty is in applying it to the circumstances of each particular case ; in other words, in determining what facts establish the relation of superior and subordinate, so as to subject the parties to the rule.

In the earlier English cases, (Bush v. Steinman, 1 Bos. & Pul. 404, and Sly v. Edgly, 6 Esp. 6,) it was declared, in respect to injuries occasioned by 'the negligent use of real property, that the owners were liable, whether the injury complained of were the acts of their own servants, or the acts of independent contractors, employed by the job. Accordingly, in Bush v. Steinman, where the owner of a house had employed a surveyor to do some work upon it, and there were several sub-contracts, and one of the workmen of the person last employed had put some lime in the road, in consequence of which the plaintiff’s carrriage was overturned, it was held that the owner of the house was liable, though the person who occasioned the injury was not his immediate servant. This liability was not supposed to arise out of the relation to which we have been referring, but proceeded, as is stated by Justice Little-dale, in his celebrated opinion in the case of Laugher v. Pointer, (5 Barn. & Ores. 560,) upon a supposed rule of law that “ in all cases where a man is in possession of fixed property, he must take care that the property is so used and managed that other persons are not injured, and that, whether his property be managed by his own immediate servants or by contractors or their servants, the injuries done upon land or buildings are in the nature of nuisances, for which the occupier ought to he chargeable, when occasioned by any acts of persons whom he brings upon the premises. The use of the premises is confined by law to himself, and he should take care not to bring persons there who do mischief to others.” Subsequently, however, in Milligan v. Wedge, (12 Ad. & Ell. 737,) and in Allen v. Hayward, (7 Ad. & Ellis, N. S., 960,) this doctrine was questioned and finally overruled. In Reedie v. N. W. R. Co. (4 Exch. 250,) where the workmen of the contractors, to whom the Railway Company had let the work, reserving to themselves the power of dismissing any of the workmen for incompetency, in building a bridge, had caused the death of a person by negligently allowing a srone to fall, it was held, in an action against the company by the administrator, of the deceased, that they were not liable, the court declaring that, after full consideration, they had come to the conclusion that there was no distinction, in point of law, in cases like that then under consideration, between fixed property and ordinary movable chattels, unless, perhaps, in cases where the act complained of was such as to amount to a nuisance. ' The doctrine of the early English cases, although recognized in Massachusetts, in Inhabitants of Lowell v. Boston & Lowell R. R. Co. (23 Pick. 24,) and in Earle v. Hall, (2 Metc. 353,) has been questioned' in New York, (Fish v. Dodge, 4 Denio, 411,) and overruled in this state, in Barry v. City of St. Louis (17 Mo. 121.) It is not material in the present case, however, as the plaintiff’s right of recovery was not put in the court below, nor is it put here, upon any principle peculiar to real property, but was made to turn exclusively upon the question whether the relation of superior and subordinate subsisted between the defendant and Greer, or whether the putting the roof upon the house was done by him as job work, under a contract with the owner for that purpose; in other words, whether Greer was the defendant’s servant, in respect to this work, or an independent job contractor. It has been justly remarked that questions of liability, for the negligence of a servant, assumed one of two forms — either, it being clear that the wrongdoer is somebody’s servant, the question is, whether he is the defendant’s ; or, the doubt is, whether he acted in his own behalf, being no one’s servant in the particular affair in which the negligence is shown, and these questions have been much discussed in the courts of justice; and although the present is not one of any great nicety, yet we may be allowed to refer for a moment to the leading cases upon the subject. In Laugher v. Pointer, to which we have already referred, where the owner of a coach had engaged of a livery stable keeper horses and a driver for the day, the question was, whether the livery stable keeper or the person who hired the horses and driver was responsible for an injury occasioned by the negligent conduct of the driver. The judges before whom the case was argued, gave separate and elaborate opinions, and exhausted — Judge Story tells us— the whole prior learning on the subject; but the point was left unsettled, as not only the court of queen’s bench, but the twelve judges differed upon it. Afterwards, in 1840, the question arose again in the case of Quarman v. Burnett, (6 M. & W. 499,) in the court of exchequer, where it was decided that the hirer was not liable ; and Parke, Baron, in delivering the opinion of the court, said: “Upon the principle that qui facit per alium, facit per se, the master is responsible for the acts of his servants, and that person is undoubtedly liable who stood in the relation of master to the wrongdoer — he who had selected him as his servant, from his knowledge or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey.”

The word servant ordinarily indicates a person hired for wages, to work as the employer may direct, and the control which thus exists in the superior over the subordinate seems to be the principle referred to in the above extract, limiting and defining the cases in which the rule to which we? have been referring is applicable. And it is accordingly held, that where one employs a person carrying on a distinct trade or calling, to perform certain work for him, independent of the control of the employer, the latter is not responsible for any injury caused by the negligence of that person or his workmen. There are many cases in the books in which this rule has been applied, and it is upon this principle that the defendant places his claim of irresponsibility for the damage here complained of. A butcher bought a bullock in Smithfield market, and employed a licensed drover to drive it home, and the driver employed a boy, through whose negligence the bullock injured the plaintiff’s property, and it was held that the butcher was not liable, as the drover exercised a distinct calling, and the boy, who did the mischief, was his servant, not the servant of the butcher. (Milligan v. Wedge, 12 A. & E. 737.) A builder was employed to make certain alterations in a club house, to do which he made a sub-contract with a gas-fitter, through the negligence of whom the gas exploded and injured the plaintiff, and the builder was excused from liability on the ground that the relation of master and servant did not exist between him and the party causing the injury. (Rapson v. Cubitt, 9 M. & W. 710.) A brig which was towed at the stern of a steamboat, employed in the business of towing vessels in the Mississippi, below New Orleans, was, by the negligence of the master and of the steamboat, over whom those in charge of the brig had no control, brought in collision with a schooner lying at anchor in the river, and the owners of the brig were held not liable for the damage occasioned by the collision, for the reason that the master and crew of the steamboat were not the servants of the owner of the brig — that they were not appointed by him, and did not receive their wages from him, and were not subject to his order or control. (Spraul v. Hemingway, 14 Pick. 71.) In all these cases, the employer had parted with the whole control over the work and the workmen ; but here, there is nothing of the kind. Greer was not employed as a job man to put the roof upon the house, the defendant divesting himself, by engagement, of all right of control; and there is no proof to that effect. He was employed as the defendant’s agent to have the work done by hands to be employed in behalf of the defendant for that purpose, and to superintend the execution of it. His engagement was by the day, and he was paid accordingly. He was bound to receive his orders, in respect to the work, from the defendant, and to obey them, and was subject to be dismissed at any moment for misconduct. It is difficult to imagine a clearer case upon the proof of the relation of superior and subordinate, within the meaning of the maxim. Without, however, any reference to the sufficiency of the proof, which was a matter for the jury, it is sufficient, as a matter of law, to create that relation, that Greer, in the language of the instruction, was engaged to superintend for the defendant the putting on of the roof, and to be paid therefor by the day. Under these circumstances, he can not be allowed to escape from his own just responsibility to others, because he omitted, in point of fact, to exercise the control over his agent that he undoubtedly possessed. The latter, however, may be liable to the former for the damage that has resulted ; but that question can not be decided here.

The judgment is affirmed.


author: Scott, Judge,

text:
    King of Prussia, Plaintiff in Error, v. Kuepper’s Administrator, Defendant in Error.
    1. A foreign sovereign may maintain an action against a citizen of this state in the courts of this state.
    2. By a law of the kingdom of Prussia, the king, upon refunding to the proper owners, under a law of the kingdom, moneys stolen or embezzled by an officer of the post office department, while the same were passing through said department, became subrogated to the rights of said owners against the embezzling officer; held, that in case such embezzling officer should abscond from Prussia and come to this state, the king of Prussia may maintain an action against him in the courts of this state.

      Error to St. Louis Circuit Court.

    This was a suit brought by Frederick William IY, king of Prussia, against Felix Coste, administrator of Frederick William Kuepper, deceased. The petition is as follows : “ The plaintiff states that he is absolute monarch of the kingdom of Prussia, and as king thereof is the sole government of that country; that he is unrestrained by any constitution or law, and that his will, expressed in due form, is the only law of that country, and is the only legal power there known to exist as law.
    /“ The plaintiff further states that by the law of Prussia any money or its equivalent sent or transmitted through the royal post department of that country, or received to be so transmitted or sent by any duly authorized officer of said department, if lost, stolen, or embezzled, is to be refunded to the proper owners thereof by the plaintiff, through his officers and agents, and that such was the law on and long before the 10th April, 1849./ The plaintiff further states that the said Kuepper was on and for a long time before the 10th April, 1849, the plaintiff’s servant and post officer at Wermelskirchen, in the kingdom of Prussia, and that while said Kuepper was such post officer, he received, in his official capacity, large sums of money, or its equivalent, portions of which money, or its equivalent, were transmitted through said department, and received by said Kuepper as aforesaid, to be delivered by him to the true owners thereof at Wermelskirchen, and portions of which were deposited with him as aforesaid by persons at Wermelskirchen, to be transmitted by him through said post department to persons at various places ; and the plaintiff, if required, is willing and ready to give a statement of each item, by and to whom sent, when, &e. The whole amount of the moneys or its equivalent, so received by said Kuepper, was seven thousand four hundred German dollars, or thereabout, which, in the currency of the United States, are equal to sixty-nine cents each.
    “ The plaintiff further says that on or about the 10th April, 1849, said Kuepper did abscond with all said sums of money, and did embezzle and convert the same to his own use, and secretly fled and escaped from the said kingdom and came to St. Louis, Missouri, where he died in the summer of 1849, and letters of administration on his estate were duly granted to the defendant (Coste) by the St. Louis probate court, on the thirty-first day of July, 1849. The plaintiff further states that he has, according to the law and custom of his said kingdom, duly refunded and paid to the various and proper owners thereof the various sums of money or its equivalent, stolen and embezzled from them respectively by said Kuepper as aforesaid, and that he therefore has, according to said law and custom, and by justice and right ought to and has a just and legal demand against the defendant, for the sums of money by him and his officers so refunded and paid.
    “ The plaintiff says, therefore, that the defendant justly owes him said sum of money, and he estimates his damages for said money and interest at the sum of seven thousand dollars, for which last sum he asks judgment against the defendant.”
    The defendant demurred to this petition, and assigned the following reasons : That the petition does not state facts sufficient to constitute a cause of action ; that it does not state any legal privity between the plaintiff and defendant; that it does not state any legal right in the plaintiff to recover the said sums of money alleged to have been embezzled from certain persons living in the kingdom of Prussia; that it does not state any legal right in the plaintiff to recover for the money embezzled by the said Kuepper, which, at the time of the embezzlement, belonged to other persons than the plaintiff ; that the plaintiff was not under any legal obligation to pay to the persons from whom Kuepper embezzled property as alleged, and the payment of such losses was merely voluntary, and that the plaintiff has no legal capacity to sue in this court; wherefore the defendant prayed judgment and for costs.
    The court below sustained the demurrer, and gave judgment for the defendant, to which plaintiff duly excepted. Plaintiff brings the case here by writ of error.
    Gibson, for plaintiff in error,
    cited in support of the petition, the following authorities : Sturges v. Crowningshield, 4 Wheat. 198 ; 1 Kent Comm. 395 ; Delafield v. State of lilinois, 2 Hill, 159 ; 26 Wend. 192; State of Indiana v. Woram, 6 Hill, 85 ; 5 Craneh, 303; Cherokee Nation v. Georgia, 5 Peters, ; King of Spain v. Oliver, 2 Wash. C. C. 432 ; King of Spain v. Hullet & Co., 1 Dow & Clark, 174; 1 Clark & Bin. 183; Columbian Government v. Rothchilds, 1 Sim. 94; Hullet v. King of Spain, 2 Bligh’s N. R. 31; Nabob of Arcot v. East India Co. 2 Brown’s Ch. 180 ; Duke of Brunswick v. King of Hanover, 1 (Chit. Eq. Dig. 144; Rothchilds v. Queen of Portugal, 1 id. 115.

      B. A. Hill, with whom was Edward Bates, for defendant
    in error. 1. Plaintiff sues defendant upon the hypothesis that a larceny by Kuepper, the intestate, while postmaster, subrogates the plaintiff to the right of action, which the parties losing the money would have had at common law against the thief who stole the property. At common law, each party from whom property was stolen had an action of trover or trespass against the thief. The action here is in the nature of an assumpsit for the moneys which the king voluntarily paid in the exercise of his will as absolute monarch, to the persons from whom Kuepper stole the various sums of money. It is not pretended that there is any legal privity between these parties known to our law ; but the will of the king is averred to be law in Prussia and to give a right of action here. No action can be maintained in our courts except upon a legal liability recognized as such by our laws. There must be a legal privity to raise the assumpsit or demand averred in the petition. The legal cause of action appears to be in various other persons than the king, and they are the only persons who could sue Kuepper in our courts. 2. The king and Keupper bear the relation of master and servant, and the servant commits a tort wilfully upon the property of certain persons. The master, by our law, is not liable for the wilful tort of his servants ; the persons who lost their money, by the larceny of Kuepper, could not have maintained an action against the king, his master, therefor. If the larceny committed by Kuepper, in the employment of the king, was an injury to the king as a person or as a corporation, an action might be sustained for such injury; but as, upon a money demand in assumpsit, the gravamen of such action would be the misconduct of the servant in the employment specified and the consequential injury therefrom, the king, in such case, would sue for the injury done to himself, not for the injuries Kuepper had done to other persons, as he has in this action. 3. By the payment of the moneys stolen by Kuepper to the parties from whom it was stolen, the king acquired no right of action against Kuepper at common law, and under our statute of 1849, it was necessary for a party to procure an assignment from the original party in interest before he brings suit. A voluntary payment, as in this case, gives no right of action. It follows necessarily from these premises that, under our laws, the king, as a person, has no right of action for the causes specified. 4. It is affirmed in the petition that the will of the King of Prussia is law there, and that by the exercise of his will, as absolute monarch, he assumed the payment of the moneys stolen by Kuepper, and therefore has become subrogated to the right of action existing in the various persons robbed; and the claim here is to recover, by virtue of his office as an absolute monarch, upon an obligation, that he has so exercised his will as to create a law under which the defendant is liable. Defendant denies the right of any party to recover upon such grounds. If the King of Prussia sues in a state court, he must waive his sovereignty, and claim in accordance with our laws and recover by virtue of some legal demand recognized as such in our jurisprudence. But the claim of the plaintiff is based upon his rights as an absolute monarch, not as a person ; he does not waive his sovereignty, but asserts his right to recover by virtue of his sovereignty, and it is upon this ground alone that the recovery can be had. If the person holding the office of King of Prussia held a demand against any other person, or against a corporation, recognized by our laws as a legal demand, he could sue as a person in our courts. It is doubtful whether he could sue in the capacity of king as a corporation sole; but the authorities seem to authorize it in cases where he waives his sovereignty, and his right of recovery is recognized by our laws. But there is no case in which it has been decided that a foreign prince or potentate can recover in a state court upon a demand not recognized by our laws, by virtue of a right of sovereignty. A trial of such a cause would involve the examination and adjudication of and upon the sovereign powers of the foreign potentate, and the validity of the decrees of such potentate, as an absolute or restricted monarch, and the rights and privileges of such monarch as king of a foreign state, under treaties with the republic of the United States. These are questions that the constitution designed should be tried and determined in the .federal courts of the republic. The state courts never had any jurisdiction of such cases or questions prior to the adoption of the constitution of the United States. (See Const, of U. S. art. 3, secs. 1, 2; 83d art. by Hamilton, in the Federalist; Martin v. Hunter, 1 Wheat. 304, 333 ; 1 Curtis’ Commentaries, p. 156-7-8-9 and 127.) The King of Prussia, in suing in a court of the state of Missouri upon a demand arising out of the alleged sovereign right of one absolute monarch to create a legal liability, by the exercise of his will, has chosen a forum where such questions can nob be tried. If by treaty or the laws of nations such a demand could be enforced, there is but one forum where the questions involved can be determined, and that forum is the federal court. If it were not so, there might be conflicting decisions in different states, upon questions of a national character. The cases relied upon by the plaintiff are not in point. They only apply to actions in which the king or foreign state, or one of the sister states, waives the right of sovereignty, and seeks to recover upon a demand recognized by our laws. (Delafield v. State of Illinois, 26 Wend. 210 ; same case in error, 2 Hill, N. Y., 161; State of Indiana v. Woram, 6 Hill, N. Y., 35 ; Columbian Government v. Rothschilds, 1 Simons, 52-3, reported in 2 vol. Eng. Cond. Ch. 52-3.) The case of Delafield v. The State of Illinois, (26 Wend. 212,) is an authority in favor of defendant. The distinction must be carefully observed between the jurisdiction of the court of king’s bench in England, and the state courts of this republic. There is no resemblance between the powers of the high court of chancery in Great Britain and the court of king’s bench, and our state courts. The former are national courts, competent to decide upon questions involving the construction of treaties, and the law of nations. The cases cited from the English books do not touch the question raised by the defence in this action. • (See Spanish Ambassadors v. Pountes, 1 Roll. Rep. ; same v. Jollife, Hobart, 78 and 113 ; same v. Gifford, Moore, 850 ; Ogden v. Eolliatt, 3 Term Rep. 726 ; Nabob of the Carnatie v. East India Co. 1 Yes. jr. 371; S. O. 2 Yes. 56; see also King of Spain v. Oliver, 1 Peters, O. G. R. 276; Article No. 33 of Federalist; King of Spain v. Machado, 4 Russ. 238, reported 3d Eng. Oond. Oh. R. 643 ; see 1 Kent Comm. 315 and cases cited; id. 316 and 318.) The plaintiff claimed his right under the treaty between the United States and Prussia and the law of nations. The jurisdiction of the federal courts is therefore exclusive, and the judgment should be affirmed.
   Scott, Judge,

delivered the opinion of the court.

This case comes up on a demurrer, and raises the question whether a foreign sovereign can sue in our courts. It seems to be now well settled in England that a foreign sovereign can sue in her courts both at law and in equity. In the case of Hullet & Co. v. The King of Spain, Lord Redesdale said: “I have no doubt but a foreign sovereign may sue in this country, otherwise there would be a right without a remedy. He sues here on behalf of his subjects, and if foreign sovereigns were not allowed to do that, the refusal might be a cause of war. (1 Dow & Clark, 175 ; The King of Spain v. Machado, 3 Con. Eng. Chan. 645; 1 Clark & Finnelly, 333; The Columbian Government v. Rothschilds, 2 Con. Eng. Chan. 48.)

Kings have been allowed to sue in the United States. In the case of the King of Spain v. Oliver, (1 Pet. C. C. R. 276,) the suit was entertained without question as to the right of a foreign sovereign to sue. So the case of the Republic of Mexico v. Arrangois and others (11 How. Prac. Rep. 1) was entertained by the courts of New York. In our courts, a writ in the name of the state of Indiana was brought and passed through all of them, without any question as to the right to do so. (Tagart v. State of Indiana, 15 Mo. 209.)

If the subjects of foreign governments will contract obligations or affect themselves with liabilities to their kings or princes, and afterwards migrate to the United States, there is' nothing in the nature of our institutions which shields them from their just responsibilities. While our government grants the rights and privileges of citizenship to all foreigners who are naturalized under our laws, there is neither policy nor justice in screening them from the civil liabilities which they have contracted with the government to which they were once subject. Our tribunals afford no assistance in the enforcement of the penal codes of foreign nations, nor would they aid despotic rulers, in the exercise of an arbitrary power, in making special and retrospective laws affecting foreigners residing here, who were once their subjects. But when laws have been made abroad, and debts have been contracted under those laws, there is no reason for refusing our assistance in their collection. Though foreign laws may be enacted by a power and in a way inconsistent with the spirit of our institutions, that is no reason why they should not be enforced against those who have incurred responsibilities in respect of them. Foreign nations have the same right to determine the form- of government most conducive to their happiness that we have, and to deny the validity of their laws, because they have not been made in a manner conformable to our notions of government, would be to destroy all comity among nations and introduce endless wars and quarrels. The averments in the petition show that by the laws of Prussia, the defendant’s intestate was indebted to his sovereign, and he should be made to answer for it.

It was maintained that this suit should have been brought in the courts of the United States, as the constitution of the United States expressly provides “that the judicial power shall extend to all cases between a state or the citizens thereof, and foreign states, citizens or subjects.”

The government of the United States being entrusted with the power of peace and war, it was necessary to invest it with authority to establish tribunals to which foreign states or subjects might resort for injuries sustained by the conduct of those residing within the limits of the United States. For the judgments of tribunals thus established, the United States would be responsible to foreign states. But if they, passing by the courts created by the general government for the redress of grievance's they may have sustained at the hands of citizens of the United States, will litigate their rights in courts for whose cotídúct the United States are not responsible, if they should be dissatisfied with the measure of justice meted to them by the courts, they have no cause of complaint against the federal government. The ready answer to any remonstrances made on that score, would be that there should have been a resort to the .tribunals established by the United States. The foreign prince has the right to resort to the courts of the general government -, this is a privilege the constitution and laws secure to him ; but he may renounce it like any other privilege, and litigate his rights in the state courts.

Whilst commentators on the constitution maintain that it is competent for congress to vest all of the judicial powers of the United States exclusively in tribunals of its own creation, it is nevertheless admitted that this has not been done, and that the state courts, in cases in which they had cognizance before the adoption of the federal constitution, may, concurrently with the courts of the United States, still entertain jurisdiction.

The state courts, undoubtedly, before the existence of the federal government, had cognizance of causes in which foreign states were plaintiffs. That jurisdiction remains, unless it has been taken away by the constitution and laws of the United States. The grant of judicial powers by the constitution, in some cases, is exclusive; in others, it is concurrent at the will of congress ; that is, congress may make it exclusive or concurrrent, as it seems best. In cases in which the state courts had cognizance before the adoption of the constitution of the United States, that jurisdiction remains unless it is taken away. Congress has conformed its action to this principle, and has suffered a portion of the judicial powers of the United States to be exercised by the state courts. - (1 Kent, 898 ; Story’s Comm. § 1784.) The jurisdiction, in cases of the character of that under consideration, has not been exclusively vested in the federal courts ; hence the state courts may still exercise jurisdiction in all such cases.

With the concurrence of the other judges,

the judgment will be reversed, and the cause remanded.


text:
    McKnight, Appellant, v. Crinnion, Respondent.
    1. In actions brought under the act of March 10, 1849, (sess. acts, 1849, p. 47,) before a justice of the peace for the recovery of personal property, the proceedings must be regulated and governed by article 8 of the practice act of 1849.

      Appeal from St. Louis Law Commissioner’s Court.

    The facts sufficiently appear in the opinion of the court.

      C. McClure, for appellant.
    McBride, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The act of March 10th, 1849, (Sess. Acts, 1849, p. 47,) gave justices of the peace jurisdiction in all actions for the recovery of personal property alleged to be wrongfully detained by any defendant; and further provided that actions in such cases should be conducted after the rules governing such actions in the Circuit Court. Now as this act took effect before the practice act of 1849 passed during the same session, which provided that it (except the 25th article) should not apply to proceedings or actions before justices of the peace, it is maintained that justices, in proceeding under the act of March 10th, above mentioned, must conform to the statute regulating the proceedings in actions of replevin in the code of 1845, in force at the date of the act of 10th March, and not to article 8 of the practice act of 1849, relating to the claim and delivery of personal property, inasmuch as'the act is not applicable to justices’ courts.

We do not concur in this view of the matter. The act of 1849 was designed to' simplify' proceedings' at ■'law. It abolished the action of replevin, and gave a new and ample procedure in its stead. Now, would it not be singular to make this this act a rule of conduct for the higher courts, and leave the old intricate proceeding for the lower courts ? In declaring that justices should conform to the rules governing actions of replevin in the Circuit Courts, the legislature obviously intended the rules for the time being. That whatever rules prevailed in the Circuit Court, at the time of beginning the proceedings in the justices’ courts, those rules should control the justices. It was not designed that the rule in the justices’ courts should be different from that in the Circuit Court, but that as often as the rule was changed for the Circuit Courts, the justices should be governed by it. The judgment is reversed, and the cause remanded ;

the other judges concurring.


text:
    Wood & Wood, Respondents, v. Steamboat Fleetwood, Appellant.
    1. WhéVe a dray ticket, containing an acknowledgment of the receipt of goods to be transported, also a statement of the rate of freight thus — “ 30 cents per 100 lbs.,” is signed by a clerk of a steamboat; held, in' a suit against the boat, that such a dray ticket is not conclusive as to the rate of freight; that the words “ 30 cents per 100 lbs.” may be shown to have been inserted by fraud, mistake or surprise, and consequently did not express the intention of the parties.

      Appeal from St. Louis Court of Common Pleas.

    This has heretefore been in this court, and is reported in 19 Mo. 529. The following instruction, to the giving of which the defendant excepted, was given to the jury by the court:
    “6. If the rate of freight was inserted in a dray ticket, and said ticket was afterwards signed by the clerk of the defendant, then the defendant is bound by said contract, as to the freight on the articles named in said ticket, unless the defendant has shown to the satisfaction of the jury that said clerk had no authority to make said contract for the defendant, and that the plaintiffs knew that he had no such authority.”
    The other facts of the case sufficiently appear in the opinion of the court.

      J. A. Kasson, for appellant.
    Barrett, for respondents.
   Leonard, Judge,

delivered the opinion of the court.

This suit was for the nondelivery of goods under an alleged contract of affreightment from Pittsburgh to St. Louis, at thirty cents per hundred, and the decision of the case turned upon the question whether or not thirty cents was the agreed rate. The boat insisting that no such agreement’ had been made, refused to deliver the goods, unless the customary rate was paid, which, it was insisted, exceeded the alleged rate ; and the owners tendering what they said was the contract price, declined paying more, and brought this action. Upon the trial, the plaintiff gave in evidence two dray tickets, signed by the boat’s clerks. In the first were found, immediately under the heading, “ Packages and weights,” the words, in pencil mark, “ at 30 cents per 100 pounds,” but which were omitted in the other. The tickets were printed blanks in book form, with two columns, headed with the words, “ marks” and “ packages and weights,” and contained a printed acknowledgment of the receipt of goods by the boat, described under appropriate heads. They are used, it seems, to discharge the draymen and to charge the boat temporarily with the goods, until the formal bill of lading can be made out from them, and it is unusual to insert in them the rate of freight.

It was insisted in proof, on the part of the boat, that the pencilled words were not upon the paper when the clerks signed it, and if they were, that the fact was not brought to their attention, and escaped their observation. The instructions given and refused declare the ticket to be conclusive evidence of the rate of freight, and exclude all parol evidence that the words were inserted by fraud, mistake or surprise, and did not express the intention of the parties. We are not of that opinion, and therefore reverse the judgment, that the cause may be tried under the view of the law now taken. When, in order to render a contract obligatory, the law requires, or the parties themselves agree, that it shall be reduced to writing, there is no valid contract until the required instrument has been executed, and when it is executed, it becomes the exclusive evidence of the whole contract, and is not open to contradiction by parol evidence ; and this rule results from the necessity of it, in order to execute the intention both the law-givers and the parties had in view in requiring the contract to be put in writing. And where, without any previous agreement to that effect, persons have entered into a written contract, in such terms as impart a perfect legal engagement, it is conclusively presumed that the whole contract is embraced in the writing, and the same rule, as to the exclusion of the parol evidence, applies as in the other cases. It would seem, then, to be an abuse instead of a just' application of the rule, which is undoubtedly one of great practical wisdom, to apply it to the loose, temporary written admission of a single term to be inserted in a contract which parties are about to enter into. A written obligation, importing a perfect, complete transaction, while it stands, is the exclusive evidence of the terms of the bargain; but even such an instrument may be reformed by a direct proceeding for that purpose, when, by fraud or mistake, it fails to express the real contract of the parties. But certainly a bill in equity need not be resorted to in order to reform a written admission not imparting a complete legal engagement, and accordingly it was said by the court, in Fuller v. Crittenden, (9 Conn. 406,) The true view of this subject seems to be, that such circumstances as would lead a court of equity to set aside a contract, such as fraud, mistake or surprise, may be shown at law to destroy the effect of a receiptand this principle was acted upon in Brown v. Bennett, (1 Camp. 394,) where a receipt obtained by fraud or misrepresentation was held to be a nullity ; and in Fairmaner v. Budd, (7 Bing. 574,) where proof was received that the signer of the receipt was illiterate, and that the receipt was not drawn according to the authority. The doctrine of the New York courts, however, in relation to receipts, goes beyond this (Southwick v. Hayden, 7 Cow. 335) ; and it is laid down in 1 Greenl. Ev. § 305, that, so far as the receipt goes, only to acknowledge payment or delivery, it is prima facie evidence of the fact, and not conclusive and we think this latter doctrine is applicable to this transactions not only in reference to the fact of the receipt of the malt, but also as to the admission in pencilled words, “ at 30 cents per cwt.” The judgment is accordingly reversed, and the cause remanded.