text:
    Bull et al., Respondents, v. Sigerson, Appellant.
    1. Where one acting as a factor receives merchandise for shipment to a particular consignee, and makes advances upon the same, and the merchandise, being refused by the consignee by reason of its being in a damaged condition, is sold for less than the sum advanced ; held, that the factor is entitled to have his advances made good.

      •Appeal from St. Louis Court of Common Pleas.

      Krum & Harding, for appellant.

      F. «/£ Dick and Glover & Richardson, for respondents.
   RylaND, Judge,

delivered the opinion of the court.

The plaintiffs brought their action against John Sigerson, counting first on a note executed by Sigerson to them for $618 32, dated the 4th day of May, 1852, and due in ninety days after date.

Secondly, the plaintiffs say that defendant owes them $1476 87 on account of reclamation for damages in a lot of 300 barrels of pickled shoulders, sold by the plaintiffs for said defendant to L. M. Wilson, of Mobile, Alabama, for which the said plaintiffs paid the said defendant, but said Wilson refused to receive and pay for the same, for the reason that the same was damaged; the particulars of which and also the credits thereon will appear by an account hereto annexed, and made part of this petition. The plaintiffs also say that said sum of $1476 87 was found due to them from the said defendant by arbitrators, Henry Ames and James E. Woodruff, chosen by the plaintiffs and defendant, to whom the matters in controversy were submitted, under an agreement signed by said plaintiffs and defendant, a copy of which, marked A,” is annexed to the petition, and made a part thereof, the original not being in their power to produce ; and they also annex the award of the arbitrators, marked B.” They ask judgment for the amount against defendant, with interest.

The defendant answers, admitting the note, but makes some unavailing excuse for non-payment, and also sets up a set-off. To this the plaintiffs reply. The court finds the amount of the debt due to plaintiffs on the note. This first count may be considered settled and out of the present controversy, as the defendant makes no objection to any thing done by the court below in regard to it. The defendant’s answer denies the second cause of action, putting in issue all the material allegations of the plaintiffs’ second count.

There was a trial by the court without a jury, and the c'ourt found the facts as follows : That the amount of interest due on the note mentioned in the petition is $119 02, and that the whole sum due on said note, including interest, is $737 34. There is no proof that said note was ever negotiated, or that any costs of protest were ever incurred or paid by the plaintiffs. The court doth further find that the plaintiffs sold 300 barrels of pickled-'shoulders, as defendant’s factors, for the defendant, to L. M. Wilson, of Mobile, Alabama, and advanced to the defendant, on the shipment of the same in March, 1851, the sum of $2850. Said purchase and shipment were made to fill an order therefor from said Wilson. On the arrival of said shoulders, said Wilson refused to receive the same on the ground that they were damaged, and the same were turned over by said Wilson to Shultze & Haddon, of New Orleans, the factors of the plaintiffs in said city. On receiving information of the refusal of Wilson to accept the said shoulders, and the ground of said refusal, the plaintiffs communicated the same to the defendant, and asked what should be done with said shoulders. The defendant suggested that they should be bedded in dry salt, if the pickle did not restore them. Two hundred and eighty barrels of said shoulders were subsequently sold by Shultze & Haddon, at their full market value, in New Orleans, it being the best disposition that could be made of them for the interest of all concerned. The nett proceeds of said sales were $1445 88, which sum was received by the plaintiffs. The remaining twenty barrels were not accounted for by the plaintiffs or their factors. Said shoulders were agreed to be sold to said Wilson at the rate of $9 50 per barrel. Shultze & Haddon, of New Orleans, charged commission on their sales. The shoulders arrived in Mobile and New Orleans in a damaged condition. There is no proof of the item in plaintiffs’ account for commissions or drayage or insurance, or of charges at Mobile ; nor is there any proof of the usual or customary rate of commission on sales or advances. The court finds that the plaintiffs did advance to the defendant, on said shipment, $2850 on 13th March, 1855; that the nett proceeds of 280 barrels, sold as aforesaid by Shultze & Haddon, were $1445 80, which nett proceeds were received by plaintiffs on the 13th August, 1851 ; that the value of twenty barrels, not accounted for was $190 ; that the plaintiffs sustained a loss on said transaction; that the amount of said lo<ss is $1214 12. The court doth further find that the exhibit, marked £ A,’ was duly executed by the parties, which is as follows :

“ ‘ On the 17th January, 1851, I entered into an agreement with Messrs. Bull, Hart & Shultze, of St. Louis, by which they agreed to make advances on a lot of bulk meat, the property of Wallace Sigerson, as said meat should arrive from Illinois river. After the arrival of said property, and while in my charge, viz., about the month of March, Mr. Bull called my attention to an order which he stated they had received from one of their correspondents, directing them to purchase 800 barrels of shoulders in strong pickle. I informed him I had the shoulders, and, if he desired to do so, could furnish the barrels, and pack them as desired ; and further stated I would furnish the shoulders at 4-f per 100 lbs., being $8 75 per barrel; barrels at fifty cents ; cost of packing and pickle, twenty-five cents ; total cost per barrel, $9 50 ; to which Mr. Bull replied that if that was as low as any one would offer to do it, he would give me the preference, probably. On the next day, they informed me they would accept my offer, and directed me to put the property in readiness for shipping, which I accordingly did ; and when so done, delivered the property to them as it was called for. When the property was so delivered, I rendered them a bill for the same, charging them in account with 300 barrels at the price above stated, and credited them in account with a commission of 2J per cent., the same as if sold and delivered to any other parties. The said amount was passed to my credit in account with them. Some time after the property was shipped, I was informed by Messrs. Bull, Hart & Shultze, that, on their arrival in New Orleans, they proved to be damaged, and asked me what I would recommend in reference to them. I informed them I thought it might be some advantage to let the pickle off, and bed them down in salt, or something about to this effect. At a later period, I was informed by these gentlemen, that, inasmuch as their correspondents had refused to receive the property, and they had returned him his money for the costs of the purchase, they would charge them back to me, or at least the loss which had been sustained. I sold the property to Bull, Hart & Shultze as I would have done to any other purchaser. I credited them with the commissions on the sale as if sold to other parties. I considered it a cash transaction, without any guarantee. I would not have packed meat in this way had I been consulted, and did recommend a different way of packing, but was informed that they could not depart from their instructions, which was to have the meat packed into barrels and the barrels filled up with strong pickle. I claim that I am not in any way liable to Bull, Hart & Shultze on account of tbe meat spoiling after it was packed, it haying been packed as directed by them, and in conformity to the order they had received, and also that the meat was sound and of good quality. Bull, Hart & Shultze claim that they were acting as commission merchants or factors, and that they could not themselves be expected to stand a loss growing outy>£ the transaction. In order, therefore, that the difference of opinion between us be settled, we have mutually agreed to refer the matter of liability to two men, one to be chosen by each, and in case of their disagreement, they to choose a third, whose decision shall be bindingand in order to carry out the aforesaid agreement, John Sigerson has chosen Henry Ames to act as arbitrator for him, and Bull, Hart & Shultze have chosen James E. Woodruff to act as arbitrator for them, and it is understood that the decision of the parties, together with such third party as they may select, in case they can not agree, shall be binding and final; it is also understood that the above statement embraces all the points at difference to be determined ; all of which points, however, are susceptible of proof. [Signed] John Sigerson.

“ ‘ We agree to the reference above, but do not admit the statement showing eost of putting up as to items, but do admit the aggregate cost. We except to the expression £ recommended,’ and state that the first objections urged by Mr. Siger--son to the payment of any reclamation was after our account was rendered. Mr. Sigerson may have said that a better way than pickling could be adopted, but we have no recollection of it. [Signed] Bull, Hart & Shultze.’

1 And that thereafter the parties and the arbitrators named therein — Henry Ames and James E. Woodruff — met, and that at said meeting the matters submitted to said arbitrators, as stated in said exhibit ‘ B,’ were heard upon proofs produced by the parties ; that thereafter said arbitrators made the award offered in evidence, which is as follows :

££ ‘ The undersigned, arbitrators, appointed by Bull, Hart & Shultze, and John Sigerson, to decide upon a claim made by the former upon the latter, amounting to $1558 26, growing out of a sale of 300 barrels pickled shoulders, made by Siger-son to a Mr. L. M. Wilson, of Mobile, through the agency of Bull, Hart & Shultze, as the recipients of the order from Wilson, and acting at the same time as the agents for Mr. Siger-son in the sale by him. The 300 barrels of shoulders were shipped to Wilson’s agent at New Orleans, and, on arrival and inspection, proving sour, Wilson refused to receive or pay, and the property, at a later period, was sold at a loss, to the amount above stated. We mutually decide that Sigerson is to bear the loss, and make good to Bull, II. & S. the difference between the original invoice, as rendered by Sigerson, and the nett proceeds of said property, when sold, with all expenses attending same from time of delivery by Sigerson until finally sold; and that Bull, H. & S. shall credit back to Sigerson the commission they charged him on the original invoice, it appearing that but one commission of 2J per cent, was to be charged Siger-son, whether his property was to be sold in St. Louis or shipped to' and sold in another market. Bull, H. & S. having accounted to Sigerson for but 280 barrels of the shoulders, they shall allow Sigerson on the remaining twenty barrels invoice price- — $9 50 — less 2J per cent, commission. We determine Sigerson’s liability, in this case, on three grounds, viz., to-wit: It is in evidence that Sigerson saw the letter to Bull, H. & S., from Wilson, ordering the shoulders, and admits it read as follows : ‘ I mean 100 barrels hams and 300 bbls. shoulders in pickle ; be sure that the pickle is of the best kind.’ Upon this order, Sigerson agreed to furnish the shoulders at a stipulated price per barrel. It appears Sigerson contends this order required him to put up the shoulders in pickle only, and to put no salt in the barrels ; and he admits he would not risk putting up shoulders in this manner for himself, and brings proof by men in his employ and others, that they believe shoulders so put up in pickle, without salt, would not remain sweet or keep thirty days, particularly if going into a warm climate. We see nothing in the language of this order to justify Sigerson in putting up the shoulders in any other than the customary way, which is admitted and proven to be by packing in strong pickle, with good supply of salt; and as an experienced packer, in the absence of any instructions or orders to put up these shoulders in pickle, without salt, other than his construction of the language in the order itself, he was bound, for his own protection, to get his views endorsed by B., H. & S.' before he would put up an article in a manner contrary to his usual custom and against his judgment, and with great doubts as to the shoulders keeping sound. Nor do we see any thing ambiguous in the order Of Wilson ordering 800 barrels shoulders in pickle, and requesting his friends to be sure the pickle is of the best kind. We see nothing in the language to justify a deviation from the accustomed manner of packing joints in pickle, viz., to use sufficient salt to feed the pickle and preserve the meat. Secondly, it is in evidence that Bull, H. & S., at the time of the contract with Sigerson, were acting as Sigerson’s factor, and were entitled to a commission on these very shoulders, whenever sold; that they notified Sigerson that they could charge no commission to Wilson, and that, had they not filled the order with Sigerson’s meat, they would not have filled it at all — their object being only to effect sale for Sigerson. He, Sigerson, admits he charged the invoice of the 800 barrels shoulders to B., H. & S., and credited them with a commission. B., H. & S., acting as the factors for Sigerson, in good faith, can not be accountable to Sigerson, their principal, unless negligence, inattention or bad faith be proven, or that they caused the loss to Sigerson by some bad management, or not having obeyed Si-gerson’s orders or instructions, and none of these charges are shown. Thirdly, it is in evidence that as soon as it was known that the shoulders were found sour on arrival in New Orleans, Sigerson was notified of the fact, and it was then his duty to have protested against Bull, H. & S. releasing Wilson, or expecting him, Sigerson, to be liable. On the contrary, when informed by'B., H. & S. that the shoulders were sour, and asked what should be done, he, Sigerson, gave such reply or recommendations or orders as to give B., H. & S. and Tompkins, in tbeir employ, fully to understand him as from that time exercising ownership in the meat in question. [Signed] Henry Ames, James E. Woodruff. St. Louis, June 18, 1852.’ In* terest on loss, from date of award, is $>243.”

Upon this finding of the facts, the court pronounced the law in favor of plaintiffs thereon, and rendered judgment for the amount of the note, and the amount of the reclamations, being the sum of $2174 28. The defendant moved for a review of the finding, and saved so much of the evidence as was necessary therefor. The court overruled said motion, and defendant brings the case here by appeal.

The principal grounds on which a review of the finding of the court was asked are, first, that the court found that the plaintiffs were, in this transaction, the factors of the defendant, and that they acted in that capacity in selling the pork in question to L. M. Wilson, and advanced to defendant $2850 on account of said pork; second, that the court found that the pork in question arrived in Mobile and New Orleans in a damaged condition, by the fault or neglect of the defendant, and that the plaintiffs’ damage or loss, by reason thereof, is $1214 12.

The plaintiffs read in evidence the exhibit, marked “ A,” also the award, marked í£ B.” The plaintiffs produced a witness, Mr. Tompkins, who proved the execution of the agreement made between the parties, dated 17th January, 1851, referred to in exhibit “A.” This agreement stipulates that the plaintiffs agree to advance to the said party of the second part (Sigerson) on a lot of salted pork, expected to arrive, specifying a large amount, at certain rates mentioned; the second party is to receive the meat on his arrival from the Illinois river, and to incur and defray all expenses in and about said meat, and to smoke and cure it in a proper manner, and to pack and deliver it to the plaintiffs, all in first rate order. The plaintiffs were authorized to sell the meat at St. Louis, or might ship part or the whole of said meat to New Orleans or any other market, and when sold, there was to be a settlement between tbe parties, as stipulated, tbe plaintiffs being entitled to charge one per cent, on the current rate of exchange on bills on New Orleans, negotiable at ninety days’ date on all demands made by them, and on the gross amount of sales shall be allowed the usual commission for selling — say 2^ percent., and all expenses actually incurred about the same ; provided, however, that there shall be but one charge made for selling said meat; and after all these charges are made and allowed and paid, then whatever may remain over shall be paid to the party of the second part. The witness, Tompkins, stated that the plaintiffs received an order from Wilson for 800 barrels pickled shoulders, which order was read to the defendant.' The order was :

If you have the thin mess pork packed, I think you might add to the order 100 barrels, put up of the hams, and 200 or 300 shoulders in pickle ; I mean 100 barrels hams and 300 barrels shoulders in pickle; be sure that the pickle is of the best kind.” The plaintiffs obtained from the defendant, and shipped under - this order the shoulders mentioned in the petition to Shultze & Haddon, of New Orleans, to be forwarded to Wilson at Mobile. The defendant knew the shoulders were obtained for Wilson under that order, and was told that Wilson refused them on the ground that they were damaged. The 'defendant suggested that they should be packed down in dry salt and that they would be restored. I understood from that conversation that defendant was exercising ownership, though I can not give his word's. The plaintiffs claimed the difference of the defendant between what the shoulders sold for in New Orleans and defendant’s invoice and costs. The plaintiffs advanced to defendant generally on property of defendant. After receiving notice of the damage, the plaintiffs notified the defendant. He expressed surprise, and then went on to direct what should be done with the shoulders. In a letter written by the plaintiffs to Shultze & Haddon in New Orleans, were these words, which the witness said contains the direction given by the defendant about the shoulders, as follows: “If the pickle does not seem to restore the shoulders, have them bedded in dry salt, free from the fly, and hold till further advised.” The testimony is voluminous. I have not thought proper to insert it all. There was testimony tending to show the amount advanced for the 300 barrels shoulders, and tending to show their damaged condition in New Orleans or Mobile. The defendant proved by a witness that the sale of the shoulders in question was made to the plaintiffs; that one of the plaintiffs was present during the time the shoulders were packed, and a bill was rendered to plaintiffs for them.

The main question here is, whether the 300 barrels of shoulders were sold by Sigerson to the plaintiffs, or whether the plaintiffs, as Sigerson’s factors, sold them for him to Wilson. The liability of Sigerson depended on this question, and these parties knew it; and, for the purpose of settling this matter, they did mutually submit it to arbitrators, and these arbitrators made their award, deciding that Sigerson was liable. It is always competent for parties to choose their own judges to dec de their matters of difference, and the law encourages and promotes this friendly method of adjudication. The award was proper evidence, and we conceive it concluded the defendant upon the only ground of defence to the action. These gentlemen submit the question, upon all the facts, to two experienced arbitrators ; upon these matters they were to say, if Mr. Siger-son was liable to the plaintiffs or not. They make their award— they'find him liable; and from the facts in proof in the case, the .court finds against the defendant. There was some trouble in finding out the cause of action in the second count; but we suppose that enough appeais to put the defendant properly on his defence thereto. We can not say that the court erred in overruling the defendant’s motion for a review. Whether this court would have found from the testimony that the plaintiffs were factors or purchasers themselves, is not the question before us. This question was submitted to other judges of the parties’ own choosing, and their decision is binding.

There is no error in admitting testimony, nor in rejecting, as appears to us by the court below. This whole matter grows out of the improper pickling of these shoulders. There should have been“ salt '0 feed the brine,” in the language of tbe arbitrators. It was this defect in originally pickling these shoulders improperly that made the defendant liable in the minds of his arbitrators, and the obedience to instructions did not, in their estimation, justify him. These instructions did not hinder the salt from being put in to keep the brine good. In looking over the whole case, the court concludes that there appears no sufficient reason to reverse the judgment below. It is therefore affirmed; the other judges concurring.


source: Caselaw Access Project

author: LeoNaed, Judge,

license: Public Domain

text:
    Walter, Appellant, v. Wimer et al., Respondents.
    I. An assignment of a stock of goods to a trustee for the benefit of a creditor provided that the grantor, until default, should have the use of the property conveyed for the ordinary and legitimate purposes of trade, and should enjoy the same unmolested, provided, however, that he, the grantor, should faithfully apply the proceeds of the sales of the goods, wares, &c., towards replenishing and keeping up the stock to its state at the time of the assignment; and that all goods, wares and merchandise thus acquired after the assignment, should he considered bound for the payment of the debt secured ; held, that the assignment was void upon its face, as a matter of law, as against creditors. (Brooks v. Wimer, 20 Mo. 503, affirmed.)

      Appeal from, St. Louis Court of Common Pleas.

    In this suit, the plaintiff, Walter, claiming title to a certain stock of goods, under an assignment by Gustave and Ferdinand Yogeler to himself, as trustee, to secure a debt of $4000 due to one Carl Yogeler, which said stock of goods had been seized by defendant, Wimer, as sheriff of St. Louis county, under a writ of attachment issued in favor of certain persons, also defendants, and had been sold by said Wimer, seeks to recover damages for the alleged destruction of the security held by him for the payment of the debt.
    The deed of trust to Walter is dated September 15, 1853, and conveyed a stock of goods, wares and merchandise, furniture, fixtures and utensils, belonging to two staple and fancy dry goods stores of the grantors. The deed described specially the articles oE which this stock was composed, and contained the following provision: “ It is distinctly understood, however, between the said Gustave and Ferdinand Yogeler and the said Carl Yogeler, and this deed is made upon this express condition only, that the said parties of the first part, their executors, administrators, heirs and assigns, shall, notwithstanding this encumbrance, have the use of said property herein conveyed for the ordinary and legitimate purposes of trade, and shall enjoy the same unmolested until default shall be made in the payment of said promissory note; provided, however, that they (G. & F. Yogeler) shall faithfully apply the proceeds of the sale of said goods, wares and merchandise towards replenishing and keeping up their stock to the present state ; and that all goods, wares and merchandise thus by them acquired hereafter, shall always be considered bound for the payment of said promissory note and subject to this encumbrance, the same as the property now on hand and herein conveyed. And it is further distinctly understood between the said parties hereto, and an express condition of this deed, that said Gustave Yogeler and Ferdinand shall have the right and privilege at any time to remove their said stock of goods, wares, merchandise, furniture, fixtures and utensils as aforesaid, (either the whole or part only, as they may choose,) to any other locality or localities, within the limits of the city of St. Louis, they may think proper ; and such removal shall not in the least affect the liability herein created.”
    The promissory note, to secure which this assignment was made, was of even date with the deed, and was payable two months after date. The writ of attachment was levied by sheriff Wimer, June 23, 1854 ; the sale by the sheriff took place July 11, 1854. The deed of assignment was recorded January 18, 1854. Plaintiff demanded judgment for the amount of the note. A demurrer to the petition was sustained by the court. Plaintiff appealed.

      B. Jl. Hill, for appellant,
    cited 11 Mo. 870; Burrill on Assignments, 174; Skinner v. Thompson, 21 Mo. 10 ; 20 Moi Rep. 505.

      T. Polk, for respondents,
    cited Brooks v. Wimer, 15 Mo. Rep. 459.
   LeoNaed, Judge,

delivered the opinion of the court.

The only difference between this case and that of Brooks v. Wimer, (20 Mo. 503,) is that here it was made the duty of the grantors “to keep up the stock of goods” out of the proceeds of the sale of them. In both cases, the grantor was authorized to dispose of the goods as owner, and not to enjoy the possession merely until the secured debt should become due. In the former case, no duty was imposed upon him in relation to the disposition of the proceeds of the sale ; but here an obligation is put upon him to apply as much as may be necessary for that purpose to the keeping up of the stock in trade. This does not distinguish the cases in principle, and the'judgment must be affirmed.


author: Scott, Judge,

text:
    Price, Respondent, v. Page & Bacon, Appellants.
    1. The withdrawal of an answer, when a case is called for trial, is an admission of the traversable allegations of the petition.
    2. Judicial notice will be taken of the fact that the state of Missouri is east of the Rocky mountains.
    3.- The drawer of a bill of exchange is liable, in case of non-payment, according to the law of the place where the bill is drawn.

      Appeal from St. Louis Circuit Court.

    This was a suit against defendants as drawers of two bills of exchange, drawn in the state of California on Page & Bacon, at St. Louis, Mo. The bills wore payable at sight, and were duly presented for payment and protested for non-payment. Due notice was given. The petition set forth the above facts, and also set forth that by an act of the legislature of California of April 16th, A. D. 1850, “ the rate of damages to be allowed and paid upon the usual protest for non-payment of bills of exchange, drawn within said state upon any person or persons in any of the United States east of the Rocky mountains, is fifteen dollars upon the hundred upon the principal sum specified in said bill, and the holder of such bill is also entitled to demand and recover lawful interest (at ten per cent.) upon the aggregate amount of the principal sum specified in such bill, and the damages thereon from the time at which protest for non-payment shall have been given.”
    Defendants put in an answer denying all the material allegations of the petition. When the case was called .for trial, the defendants moved for a continuance, for the reason that the plaintiff had not, as required by rule of court, filed an abstract of the issues to be tried two days before the cause was set for trial. This motion was overruled, and the court required the defendant to go into the trial of the cause forthwith. Defendants then withdrew their answer, and the plaintiff submitted the cause to the court upon the petition and-^the bills of exchange and the endorsements thereon. The court gave judgment for the plaintiff for $15,888 96, which sum includes fifteen per cent, damages, and interest on the principal sum, and damages at ten per cent.

      JV*. D. & G. P. Strong, for appellants.
    I. The recovery of fifteen per cent, damages, under the statute of California, was contingent upon the part of the residence of the drawers being east of the Rocky mountains ; and there is no allegation or proof of that fact; nor is it a fact of which the court could take judicial notice. (1 Greenl. Ev. 4, 5, 6.)
    II. • The answer having been withdrawn, the ease stood as upon a default; and the existence of the California statutes, alleged in the petition of plaintiff, the amount of damages and interest claimable under those statutes should have been proven. The default was no confession of the amount claimed. No such proof was exhibited.
    III. The bill was payable in Missouri, and the plaintiff was entitled to such interest only as is payable under the laws of Missouri. (19 Mo. 651 ; Story’s Conf. of Laws, § 291 ; 2 Kent, 457.)
    IV. The rate of damages, under the circumstances of this case, are controlled by the laws of Missouri; Missouri has legislated upon the whole subject of damages upon bills of exchange ; and this legislation, so far as our own citizens are concerned, is exclusive ; otherwise, the holder of a bill might recover under the laws of both states.

      T. Polk, for respondent,
    cited 1 Mo. 348 ; 15 Mo. 619 ; 4 T. R. 275 ; 2 Tidd’s Prac. 824-5; 17 Mo. 56 ; 19 Mo. 33, 125 ; 18 Mo. 476, 479; 18 Mo. 604; Story’s Conf. of Law, 261, 241.
   Scott, Judge,

delivered the opinion of the court.

1. The answer of the defendants having been withdrawn, whether we regard the judgment taken as one by default, or a cognovit actionem relicta verijicatione, the same result follows. (Sellon’s Prac. 373; 5 Wend. 134.) They both are an acknowledgment of the count. A default admits the tra-versable allegations in the declaration. The laws of California regulating the damages on bills of exchange and the rate of interest are alleged to be in existence. They are traversable facts, and were in fact traversed. The withdrawal of the plea, then, was an admission of them.

2. The courts will take notice that the state of Missouri is east of the Rocky mountains. In the case of Peyroux v. Howard & Varion, (7 Pet. 342,) the Supreme Court of the United States remarked that it can not certainly be laid down as a universal or even as a general proposition, that the court can judicially notice matters of fact. Yet it can not be doubted that there are many facts, particularly with regard to geographical positions, of such public notoriety, and the knowledge of which is to be derived from other sources than parol proof, which the court may judicially notice. Thus in the case of the United States v. La Vengeance, (3 Dall. 297,) the court judicially noticed the geographical position of Sandy Hook ; and it may certainly take notice judicially of like notorious facts, as that the bay of New York, for instance, is within the ebb and flow of the tide.

3. As to the damages to be recovered against a drawer on a dishonored bill of exchange, the law seems to be settled, that, upon a foreign bill returned, the drawer pays the damages allowed by the law of the place where the bill was drawn. (2 Kent, 459; Story’s Conf. of Law, 307.) In Allen v. Kemble, (6 Moore P. C. R. 314,) the court say, “ The drawer, by his contract, undertakes that the drawee shall accept, and shall afterwards pay the bill, according to its tenor, at the place and domicil of the drawee, if it be accepted generally. If this contract of the drawer be broken by the drawee, either by nonacceptance or non-payment, the drawer is liable, not where the bill was to be paid by the drawee, but where he (the drawer) made his contract, with the interest, damages and costs, as the law of the country where he contracted may allow. In every case of a bill drawn in one country upon a drawee in another, the intention and agreement are that the bill shall be paid in the country upon which it is drawn. But it is admitted that, if the payment be not so made, the drawer is liable according to the laws of the country where the bill was drawn, and not of the country upon which the bill was drawnTo the same effect is the case of Gibbs v. Fremont, (20 Eng. Law & Eq. 558; Story’s Conf. of Laws, § 315.) After bills are accepted, they are to be governed by-the law of the place where they are payable. The other judges concurring, the judgment is affirmed.


text:
    Abrahams et al., Plaintiffs in Error, v. Krautler, Defendant in Error.
    1. A person who, building upon his own land, makes use of the wall of an adjoining proprietor, does not thereby render himself liable for one half the cost of such wall; if any injury has been sustained, the appropriate remedy is an action for damages resulting from such injury.

      Error to St. Louis Circuit Court.

      Knox & Kellogg, for plaintiffs in error.

      Hudson & Thomas, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

It does not appear from any thing contained in the record whether the wall, the half of whose value is sued for, stands on the dividing line between the plaintiffs and defendant, or whether it is entirely on the land of the plaintiffs. Nothing appearing on the subject, we must take it that the builders of the house occupied by the plaintiffs were not trespassers, and built upon their own land. If this be so, even then we do not see the principle on which the plaintiffs seek to make the defendant liable for one half of the cost of their wall. If the principle insisted upon be a correct one, then the use of the wall of the plaintiffs by the defendant, as a wall for his house, for any, no matter how short a time, would render him liable for half the cost of it. Though the wall might be an old one, in use for a great many years, yet, if one afterwards uses it, he will be liable for one half of the original cost. There may be statutes in England and in some of the the United States which give an action like the present against one who uses the wall of another as a party-wall ; but we have found no case at common law which furnishes a ground for an action like this. If one’s wall is used by another to his injury, he may undoubtedly have an action for such injury. The case of Rankin v. Charless (19 Mo. 490) contains a recognition of this principle. But if one of two adjoining proprietors puts a structure on bis land, from which his neighbor derives a benefit, without any injury to the owner of the structure, we know of no case which gives an action under such circumstances. If one makes use of his neighbor’s fence as a part of his enclosure, committing no trespass and doing no injury, will an action lie against him for half the cost of the fence ? The want of generosity in such conduct is a matter with which the law has nothing to do. If the plaintiffs have sustained any injury by the conduct of the defendant, his redress is an action for damages resulting from such injury. If the injury committed amounts to a nuisance, the law furnishes an appropriate remedy. The other judges concurring, the judgment will be affirmed.


author: LEONARD, Judge,

text:
    Hardcastle et al., Plaintiffs in Error, v. Fisher et al., Garnishees of Mudgett & James, Defendants in Error.
    1. The omission of an assignee, in the case of a voluntary assignment for the benefit of creditors, under the act concerning voluntary assignments (R. C. 1845, p. 127), to file an inventory, give security, or to discharge any other duty imposed by said act, can not destroy the right's of the creditors under the assignment.
    2. Although it may be attempted by an assignment for the benefit of creditors to secure one or more fictitious and fraudulent claims, neither the assignee nor the other creditors being cognizant of the fraud, this will not render the assignment ineffectual in favor of such other creditors ; the assignment
    “ will in such case be held void as against the fraudulent claimant, and good in favor of the honest creditors.
    3. The effect of impeaching such a claim by reason of fraud is that the share of the fund, that would otherwise be appropriated to its payment, sinks into the residue for the benefit of those creditors who are entitled to the residue by the terms of the deed of assignment; an attaching creditor, who summons the trustees as garnishees, can not be allowed to stand in the place of the excluded claimant and take his share of the fund.

      Error to St. Louis Court of Common Pleas.

    On the 1st of October, 1853, plaintiffs commenced a suit by attachment against Mudgett & James, averring in their affidavit, as grounds for the attachment, that the defendants had fraudulently conveyed and assigned their property and effects so as to hinder and delay their creditors. In the month of October, 1853, the respondents were summoned as garnishees of said Mudgett & James. At the return term of the writ, Mudg-ett & James filed a plea in abatement to the affidavit for the attachment, and afterwards, in February, 1856, on a trial before a jury, the issue made by the plea in abatement was found for the plaintiffs. On the 1st of March, 1856, the plaintiffs, by leave of court, filed amended allegations and interrogatories against the defendants, as garnishees of Mudgett & James, in substance as follows : That Mudgett & James were partners, doing business as drygoods merchants in the city of St. Louis, from January, 1850, until 27th September, 1853 ; that they had contracted partnership debts for goods, wares and merchandise to the amount of $60,000, up to 29th September, 1853 ; that they then had, in tangible stock and property, about $40,000 in value; that Mudgett & James, designing to cheat and defraud certain of their creditors, made a deed of trust dated 27th September, 1853, and thereby conveyed all their said tangible property and their notes and accounts to defendants in this case, Hickman and Fisher. The allegations set out at length the said deed to the defendants. This deed, dated 27th September, 1853, acknowledged and duly recorded on the next day, was made by Mudgett & James to the defendants as parties of the second part, and Morris L. Holland & Co., William Mudgett, jr., of Rochester, Mrs. Elizabeth C. Chadwick, the plaintiffs, and many other persons as parties of the third part, in consideration of the debts and trusts therein named, and ten dollars paid to Mudgett & James by defendants. It conveyed, transferred and sold to the defendants all the goods of Mudgett & James, the fixtures in the store-room, their unexpired lease, all evidences of debt, accounts, &c., and insurance stock, intrust, to pay the debts therein named and expenses of the trust, in the order and according to the classification mentioned. The trustees were required to take immediate possession of every thing conveyed, and were authorized to dispose of the merchandise in the usual manner, by sale, at retail or otherwise, as might seem to them best for the interest of the beneficiaries. Whatever remained undisposed of on the 15th of March, 1854, the trustees were required (unless in their opinion it was proper to do so sooner) to advertise for thirty days, and sell at auction, on these terms : for all sales under fifty dollars, cash, and for sums over that amount a credit of sixty day3, secured by negotiable notes, with approved endorsers. The deed was also signed by Hickman and Fisher. The plaintiffs, in their allegations, further alleged that upon the execution of said deed, a formal delivery of the possession of the goods in the store of Mudgett & James was made to the garnishees, and the garnishees immediately employed Mudgett & James to act as their clerks and agents to take an account of stock, and to sell off the goods, wares and merchandise conveyed by said deed ; that Mudgett & James, being so employed, proceeded to sell said merchandise at their old stand for about four and a half months, for cash and upon credit, the proceeds of which sales were regularly pajd to said Hickman and Fisher ; that Hickman and Fisher knew nothing of the fraudulent design of Mudgett & James, and that they have no other right, title, claim or property in the said goods,' credits and effects transferred to them by Mudgett & James than they ac-. quired by said deed ; that the deed was executed and delivered by Mudgett & James, then being in failing circumstances, with the intent to hinder, delay and defraud their then existing creditors, among whom were the plaintiffs in this writ, by providing therein for the fraudulent preference and payment out of said property and effects of the debts, alleged to be fraudulent, of Charles Miller for $1515, of Wm. Mudgett for $12,655, and of Elizabeth Chadwick for $3187, as preferred claims, to be paid before the payment of the principal part of their partnership debts subsequently named in said deed ; that the demands of Miller, Mudgett and Chadwick were and are fraudulent and void, and not due or owing by Mudgett & James in whole or in part; that the plaintiff never assented to said deed ; that Hickman and Eisher never filed any inventory, nor gave any bond, nor did any act required by the act of the general assembly concerning voluntary assignments, nor in any way treated said deed, or the property therein conveyed, as within the provisions of said act.
    The garnishees demurred to the allegations and interrogatories, and the demurrer was sustained.

      JB. J2. Hill, Krum & Harding and J. R. Shepley, for plaintiffs in error.
    I.The instrument in which Hickman and Fisher were trustees is not of that class of conveyances included to be provided for by the act concerning assignments.
    H. Even if the instrument is within the description mentioned in the first section of the assignment act, yet as the parties to it have never treated it as such, and said trustees have never performed any of the requirements of that act, they can not invoke the aid of that act to prevent a recovery.
    IH. At least the plain tiffs are entitled to recover from tho garnishees so much of the funds in their hands as would have come by the provisions of the conveyance into the hands of the fraudulent creditors.

      Glover & Richardson, for defendants in errror.
    I. The deed was supported by a valuable consideration. (Gates v. Labeaume, 19 Mo. 27 ; Halsey v. Whitney, 4 Mason, 214 ; Lawrence v. Davis, 3 McLean, 178 ; Burrill on Assignments, 219.)
    II. The deed in this case is in all essential particulars like ' the deed of Claverdetscher directly in question in the case of Gates v. Labeaume, 19 Mo. 17.
    III.The plaintiffs having conceded that the trustees were ignorant of any fraudulent intent on the part of Mudgett & James, and the deed having been made for a valuable consideration in law, tbe fraud of the grantors can not be imputed to the grantors, and they were not liable to the process of garnishment.
    IY. The other creditors named in the deed whose demands were not assailed, had an interest in the deed being sustained, and their rights ought not to be prejudiced by the fraudulent pui’pose of Mudgett & Janus in re erence to any other persons not real creditors.
    Y. If the deed was valid and operative when it was executed and delivered, its character could not be changed after-wards by any act of the makers or the trustees. On the delivery of the deed, the beneficiaries in it acquired rights which neither the grantors or grantees could affect, and neither their acts nor omissions could disturb rights already vested. (10 Mo. 27 ; Burrill on Assignments, 401.)
    YI. There is nothing in the argument that the assignees did not comply with the requisitions of the law after they accepted the trust. ( See sections 23 and 24.)
   LEONARD, Judge,

delivered the opinion of the court.

1. The deed falls within the provisions of our act concerning voluntary assignments, and we must treat it as such in determining the present controversy. The omission of the assignee to file an inventory and give security, or to discharge any other duty imposed upon him by the statute, can not affect the rights of the creditors ; and we are not at liberty, from any thing now before us, to presume that the creditors themselves have abandoned the assignment, and left the property embraced in it to be the subject of a general scramble among the creditors.

2. Three of the supposed debts provided for in the deed, and which were to be paid first and in preference to the great mass of the debts, are admitted by the demurrer to be fictitious claims fraudulently put into the assignment by the contrivance of the grantor and these supposed creditors, but without the concurrence or knowledge of the assignees or the other creditors. We think it pretty well settled by the course f decision in this state in reference to a voluntary assignment, that the fraud of one or more of the creditors does not defeat it altogether and render it wholly ineffectual in favor of the others ; and we are not disposed, after reconsidering the matter, to change the course of adjudication upon this subject. The courts of Yirginia, North Carolina and Alabama have taken the same view; (Anderson v. Hooks, 9 Ala. 704; Sewall v. Henry, 5 Grattan, 31; Harris v. Graffenreed, 11 Iredell, 89; Brannock v. Brannock, 10 Ib. 428;) but in New York, the old rule — void in part, void in toto — seems to be adhered to and applied to these transactions. (Fiedler v. Day, 2 Sand. Sup. C. R. 596.) We think it, however, the part of wisdom, since the legislature have interfered in reference to these assignments, to uphold them, rather than to defeat them by lending too easy an ear to objections ; and that the better way to render them effectual in securing the effects of insolvent debtors to their creditors, will be to exclude the fraudulent claimant from any participation in the fund, by holding the assignment void as to him, and letting it stand in favor of honest parties.

2. The attaching creditor, however, can not be allowed to stand in the place of the excluded claimant, and take his share of the fund. There is no legal principle upon which we can allow this. The impeached claim is extinguished by the fraud, so far as any participation in the assigned effects is concerned, and the effect of this in reference to the other creditors is, that the share, that would otherwise have been appropriated to its payment, sinks into the residue for the benefit of those who are entitled to the residue by the terms of the deed. The other judges concurring, the judgment is affirmed.


author: Ryland, Judge,

text:
    Randalls et al., Defendants in Error, v. Wilson et al., Plaintiffs in Error.
    1. A judgment against infant plaintiffs, appearing by attorney, maybe recalled or set aside on motion of such plaintiffs, although at the date of the judgment one of such infant plaintiffs may have attained his majority.
    2. The judgment being entire, must be recalled and set aside as to both plaintiffs.
    3. After the judgment is recalled, the suit may he dismissed.

      Error to St. Louis Circuit Court.

      Geyer & Dayton, for plaintiffs in error.

      Todd & Krum, for defendants in error.
   Ryland, Judge,

delivered the opinion of the court.

Evermant E. and Emerine A. Randalls instituted their suit in the St. Louis Circuit Court for the April term, 1851, thereof, against John Wilson and James Harrison for setting aside a deed of conveyance of land, and vesting the title thereof in them, and restoring the possession thereof to them. Wilson was not summoned, and did not appear; and as to him the suit was discontinued. Harrison was summoned and answered, and the cause was heard March 1,1853, and judgment rendered for Harrison, with costs against the plaintiffs below. The suit was instituted and prosecuted to judgment by plaintiffs below, by their attorney only. On the 7th day of March, 1854, the plaintiffs below filed their motion in the court below that said judgment be recalled on the ground that when said suit was instituted both the plaintiffs below were minors, and that one of them, Emerine A., was a minor when said judgment was rendered, and still is, and married to Henry Ashbrook, who appeared with her in this proceeding, of which allegations affidavits were filed for proof and were admitted to be true. Harrison appeared and opposed this motion, which, upon being heard by the court, was sustained, and the said judgment was recalled. Harrison excepted, and brings this case to this court by writ of error.

From tbe statement made above, it will be seen that the rulings of the court below, in recalling the judgment, first herein rendered in favor of the defendant below (Harrison), and also in permitting plaintiff below to dismiss the suit, are the matters now presented for the decision of this court. The questions involved have heretofore been before this court, and have been decided. In Powell v. Gatt, (13 Mo. 458,) it was held that a judgment against an infant defendant, who appears by attorney, may be set aside upon motion made after the infant has become of age. In this case of Powell v. Gatt, the judgment was rendered in 1841, and the motion to set aside in 1847. The court held that there was no limitation to be found in our statute book to a proceeding to correct a judgment of law founded upon an error of fact; and that the error in this ease was an error not of law but of fact. Here, in the case now before us, the judgment, which was recalled and held for naught, was against an infant plaintiff, who sued by attorney. In the case of Powell v. Gatt, it was against an infant defendant, who appeared by attorney. The rule is the same as to judgments against infants who appear by attorney. Such judgments, whether against an infant plaintiff or infant defendant thus appearing, are erroneous, and will be recalled and held for naught on motion. A judgment in favor of an infant, after verdict or by default, who appeared by attorney, would not be considered erroneous in England since the statute of 21 James I,, ch. 13, sec. 2; and 4 Ann, ch. 16, sec. 2.

In this case now before us, the judgment was rendered against the plaintiffs, who commenced and prosecuted their suit by attorney. At the date of the judgment, one of the plaintiffs had obtained his maturity; the other was married, but still a minor. Now this judgment against the minor being erroneous was, on motion, properly recalled by the court below, and held for naught; and, as the judgment here was an entire thing, it could not be recalled against one, and at the same time stand good against the other ; it must be recalled as to both. This point was so ruled in the case of Rush et al. v. Rush et al. (19 Mo. 441.) Where a judgment is entire, it must be affirmed or reversed entirely. It can not be split up and affirmed as to some, and reversed as to others against whom it had been rendered. (12 John. 434; 5 Wend. 161.)

Upon the whole, then, the record presents no error, and the judgment of the court below must be affirmed. After the judgment below had been recalled and held for naught, the plaintiffs (Randalls) had the right to dismiss the suit; at least it is such an act as the defendant Harrison has no right to complain of. Let the judgment be affirmed ; the other judges concurring.


author: RylaND, Judge,

text:
    Warren, Respondent, v. Palmer et al., Appellants.
    1. A pork packer engaged to examine, salt, brine, repack, and brand a lot of meat, and to “guarantee New Orleans inspection;” held, this agreement amounted to a guaranty that the pork should pass inspection in New Orleans as branded by the packer.

      Appeal from St. Louis Court of Common Pleas.

    It is thought unnecessary to set forth the facts more fully than they appear in the opinion of the court.

      J. A. Kasson, for appellants.

      Glover & Richardson, for respondent.
   RylaND, Judge,

delivered the opinion of the court.

The contract, for the breach of which this action was brought, was a contract by a pork packer that the meat should pass New Orleans inspection. For the defendant, it was insisted among other things that the damage was occasioned by secret defects in the meat, and that the guaranty did not extend to such defects, and that it was a question for the jury and not for the court whether the guaranty extended to such defects.

There was a trial by a jury and a verdict for the plaintiff, and judgment thereon. The following instructions were given on the motion of plaintiff: “1. If the jury find that the defendants made the contract of guaranty mentioned in the plaintiff’s petition, and the pork, packed by the defendants under such contract of guaranty, was by the plaintiff shipped to New Orleans in such time as was contemplated by the parties, and Was there submitted to inspection without unreasonable delay, and on such inspection was found and reported by the proper officer to be deficient in quantity or defective in quality accord - ing to the brands put upon it by the defendants, then the plaintiff is entitled to recover in this action. 2. Although the jury may find that, by the usual course of business, when pork is sold or unpacked under a contract of guaranty that it shall pass the New Orleans inspection, it is implied that the pork, shall be shipped without unnecessary delay, yet, if in this case the defendants agreed with the plaintiff to repack his pork and guarantied that it should, when so repacked, pass the inspection at New Orleans, and it was understood between the parties at the time, or before making the contract, that the pork should net be shipped for several months, then it is. no defence to the defendants that the pork was not shipped sooner. 3. That if the jury find that the defendants agreed to guaranty that the pork, when repacked by them, should pass inspection at New Orleans according to the brand they should put on it, then it is no excuse for them that the meat was defective when they put it up.”

The court, on its own motion, gave the following: “ 4. If the jury find that no time during which the pork should pass ■inspection in New Orleans was understood by the parties or agreed upon by them, then the time is to be determined by the usages of trade, and limits the period during which defendants’ liability on the guaranty continued, if they find a guaranty to pass inspection in New Orleans was made by the defendants.”

The following instructions were given, on motion of defendants : “ 5. If the jury find from the evidence that a guaranty was in fact made by the defendants that tbe pork should be packed to pass inspection at New Orleans, they are instructed in that case, that, if no usage of trade is proved to the contrary, and no other time of inspection understood between the parties, it was implied as a condition thereof that it should be sent forward by the plaintiff and inspected in New Orleans in a reasonable time after packing. 6. And if they further find that the inspection did not take place within a reasonable time, considering the season of the year and the other circumstances in evidence, then the defendants would be discharged from all liability under said guaranty, if any was made, and they will find for the defendant. 7. It is for the jury to consider, under the circumstances in evidence, whether, if such an absolute guaranty as is here relied upon was made, it was intended to cover the weight of the pork at New Orleans as well as the quality, and whether the plaintiff was at all damaged by the alleged too light weight put in the barrels at the time of the repacking, if such was the fact.”

The court refused to give the following instructions asked by defendants : “1. The jury are instructed, that, if the receipt offered in evidence by the defendants was executed by them and offered to the plaintiff or his agents from them, in connection with the transaction in question, and contained the agreement, all prior conversations touching said contract are to be considered as waived, and the said receipt alone is to be relied on as showing what the contract between the parties was, and as containing the whole agreement. 2. If the jury find from the evidence that a guaranty was in fact made by the defendants that the pork should be packed to pass inspection at New Orleans, they are instructed in that case that it was implied as a condition thereof that it should be sent forward by the plaintiff and inspected in New Orleans in a reasonable time after the packing; and if they further find that the inspection did not take place within a reasonable time, considering the season of the year and the other circumstances in evidence, then the defendants would be discharged from all liability under said guaranty, i£ any was made, and they will find for tbe defendant. 3. The jury are further instructed, that, if the damage in question, or any part thereof, was owing to inherent defect in the pork, or in the curing, which developed itself subsequently to the packing, or was the result of exposure, or any cause other than defective packing, the defendants are' not responsible therefor. 4. And the burden of proof is upon the plaintiff to satisfy your judgments whether any and how much of said damage is chargeable upon the bad packing.”

This was a contract not reduced to writing by the parties, but a witness was called by them to hear and witness what it was. This witness immediately reduced the contract to writing for his own benefit. The substance and material points were marked down as a memorandum for the witness, should he be called on to prove it. This memorandum is as follows : “ Whitaker & Palmer agree to dray Warren’s pork for 22 J cents per load of 5 bbls.; examine, salt, brine, repack, brand, and guarantee N. 0. inspection — mess pork, 40 cents per bbl.- — no storage, one month ; 2J cents per bbl. the second and succeeding mo’s — any new packages required, charge no more than cost. April 14th, ’51.”

The instructions given on the motion of plaintiff, as copied above, are, in the opinion of this court, correct. These instructions embody the law arising on the case hypothetically put, and the defendants were not and could not be injured by them. The contract was not to guaranty the pork to be of any particular quality or grade. It was the duty of the packers to brand the proper quality and weight on the barrels. This was completely in their power, and to do this was the contract, so that the same should pass the New Orleans inspection. The contract did not require them to guaranty that the meat should be good, no matter what its quality was, but to examine, salt, brine, repack and brand, and then guaranty that the same should stand New Orleans inspection, as thus examined, salted, brined, packed and branded. For instance, a barrel was branded as “ prime, 200 lbs. ;” now when inspected in New Orleans the guaranty was that it should pass as “ prime” and have 200 lbs. This contract therefore was not to make any particular guaranty of any particular quality. The defendants then had it in their power so to repack and brand as'that the pork should answer to its marks or brands — should stand inspection in New Orleans.

The instructions given for the defendants called to the mind of the jury the extent of the guaranty. The contract was a parol one, and the terms and extent were in some measure to be found by the jury, and the second instruction given for defendants left this fact to be found by them. Chief Justice Gibson said, in Sidwell v. Evans, (1 Penn. 386,) “ that the construction of written evidence is for the court, and of parol evidence for the jury, and that an admixture of parol with written evidence draws the whole to the jury, are principles which appear everywhere in- our books.” “ The interpretation of written contracts is for the court, but where the matter rests in words, and the intention of the parties is to he ascertained from what they have said and dione, it is a question for a jury." (Halbert v. Halbert, 21 Mo. 284.) The instructions refused we consider were properly rejected. The first one is obviously bad. There is no pretence that the receipt contained the agreement as made by the parties, for there is no proof that plaintiff ever saw it, or that it was ever out of the defendants* possession. It was not given or intended to he given for that purpose. The agreement was witnessed by the person called for that purpose, and he made a memorandum of it. The second instruction was substantially already given to the jury, and the third was properly refused because it assumed the liability of the defendants to rest alone on a defective packing of the pork.

We have carefully looked through this voluminous record, and find no error upon the whole calling for a reversion of the judgment below. Let the judgment be affirmed; the other-judges concurring.


text:
    Kinnear, Respondent, v. Jones, Appellant.
    1. Where a suit is commenced before a justice of the peace to enforce a claim for work and labor against a contractor, also a lien againstthe building, and the suit as against the owner of the building is commenced out of time, and no judgment is rendered by the justice in regard to the enforcement of the lien; held, that the St. Louis Law Commissioner’s Court has jurisdiction of an appeal taken in such case by the contractor from a judgment rendered against him by the justice.

      Appeal from St. Louis Law Commissioner’s Court.

      Lewis and Henning, for appellant.

      P. E. Bland, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This was a suit brought'by Kinnear against Jones before Mann Butler, Esq., a justice of the peace, for work and labor done by Kinnear as a bricklayer in the employment of said Jones on a brick building situated in the city of St. Louis, and owned by J. B. Ghio. The account was for twelve and a half days’ work, at $2 50 per day, amounting to $31 25.

Kinnear filed his account, describing the building, and stating the work and price done by him for Jones, with the clerk of the Circuit Court of St. Louis county, on the 12th of July, 1853, and gave notice on the 9th of July, 1853, to Jno. B. Ghio, the owner of the building, of his claim and intention to hold the lien on it for the said work and labor, amounting to $31 25. The work was done, as stated in the account, between the 23d day of March and the 10th day of May, 1853. The justice issued his summons against said John B. Ghio also, to answer the complaint of Kinnear on a lien filed for the same account on which Jones was sued ; and the justice’s transcript embraces the two different actions — there being two different writs of summons — one against Jones on the account for work and labor done, and the other against Ghio for the same account, but to enforce the lien against his building, on which the work had been done ; and all the difficulty in the case arises from the confusion consequent upon this state of the justice’s transcript. However, nothing further appears upon the transcript against Ghio than the summons and its return executed by the constable. There is no judgment, one way nor the other, so far as it respects Ghio. The parties — that is, Kin-near and Jones — appear before the justice on the 14th of November, and by consent the cause was continued until the 19th of the same month, when they appeared again and submitted the cause to the justice, who rendered judgment for the amount of the account for the plaintiff. The defendant appealed to the Law Commissioner’s Court, where he moved the court to dismiss the suit; which was overruled. The plaintiff then moved to dismiss the appeal because the Law Commissioner had no jurisdiction ; the suit being for a lien against a building, should have been taken by appeal to the Land Court and not to the Law Commissioner’s Court. This motion was sustained, and the appeal was dismissed. The appellant excepted, and brings the case here by appeal.

From the record, there seems to have been some omission in regard to the case against Ghio. It does not appear to have been adjudicated. More than ninety days had elapsed after filing his lien before the plaintiff commenced his action against Ghio. This was in the face of the statute allowing the lien, which declares that all actions under it shall be commenced within ninety days after filing the lien, &c. (St. Louis Lien Law, Sess. Acts, 1843, p. 83.) Here, the suit did not begin within the ninety days. The account was filed as a lien on the 12th of July, and the summons issued on the 28th October, 1853. However, it does not appear to have been adjudicated upon by the justice. The judgment rendered was against Jones, the debtor ; the appeal is taken by Jones, the debtor ; and there does not seem to be the least ground to object to the jurisdiction of the Law Commissioner in regard to the appeal taken to his court. There is no judgment in regard to any lien, nór any attempt to enforce the lien in the case that was tried before tbe justice. The .lien part of it was never before the Law Commissioner. Ghio has nothing to do with the case. It is a mere personal action against Jones, and the judgment a mere personal judgment. It was, therefore, in the opinion of this court, error for the Law Commissioner to dismiss the appeal. The judgment below is reversed, and the cause remanded for further proceedings.

Judge Leonard concurring.


text:
    Harley, Respondent, v. McAuliff, Appellant.
    1. Where a party appealing from a justice of the peace to the St. Louis Land Court fails to pay the jury fee and file the trat script, the court may, upon the appellee’s filing a transcript and paying the fee, affirm the judgment of the justice.
    2. Willi v. Peters, 11 Mo. 395, affirmed.

      Appeal from St. Louis Land Court.

      Hart & Jecho, for appellant.

      M. L. Cray, for respondent,
    cited Sess. Acts, 1847, p. 69; R. C. 1845, p. 244; Hardison v. Steamboat Cumberland Valley, 13 Mo. 226 \ Gordon v. Scott & Mudge, 15 Mo. 249 ; 11 Mo. 214; 18 Mo. 410; 19 Mo. 239 ; R. C. 1845, p. 826, 828 ; Hull v. Dowdall, 20 Mo. 359 ; 5 Mo. 248 ; 5 Mo. 323.
   Ryland, Judge,

delivered the opinion of the court.

The principle decided in this case is the same as that heretofore determined in this court in the case of Hardison v. Steamboat Cumberland Valley (13 Mo. 226); also in the case of Gordon v. Scott & Mudge (15 Mo. 249). We see no reason to change these decisions. The Land Court stands in the same situation, in regard to appeals properly in its jurisdiction, as the Circuit Court and St. Louis Court of Common Pleas do in regard to appeals properly allowed to be taken to them.

The complaint in this case, if it could be allowed to the defendants to file their motion in arrest, is good and sufficient, and comes fully within the principle laid down by this court in the case of Willi v. Peters (11 Mo. 396).

The judgment of the court below must be affirmed ; the other judges concurring. • &


author: Leonard, Judge,

text:
    Johnson’s Administrators, Respondents, v. Steamboat Arabia, Appellant.
    1. Where a slave is lost overboard and drowned in consequence of being, without the permission of his master, put to work “ wooding” by the officers of a steamboat, upon which he was being transported, the steamboat will be liable for the loss.

      Appeal from St. Louis Court of Common. Pleas.

    The facts sufficiently appear in the opinion of the court.

      Hudson & Thomas, for appellant.

      H. Hitchcock, for respondents.
   Leonard, Judge,

delivered the opinion of the court.

The jury were very properly instructed as to the law of the case. The slave was being transported on the defendant from Kentucky to St. Louis, and during the voyage an officer of the boat put him to “ wooding” without his master’s permission, and while so engaged he fell overboard and was drowned. The court directed the jury that if the boy were lost through the carelessness or unskillfulness of the officers.or crew of the boat, or that, if an officer of the boat, without the master’s permission, put the boy at work, and he was lost while he was so engaged and in consequence thereof, the defendant was liable ; but that he was not liable on the latter ground, if the work did not contribute to his death. In Garneau v. Herthel, (15 Mo. 192,) this court decided that a person, who employs the slave of another, without the master’s permission, to perform labor for him which exposes the life of the slave to danger, must bear the consequences of such engagement; and if the slave be killed by the effect of the business or employment, in which he has been engaged without his master’s permission, the person so employing him must pay his value to his master. The correctness of this proposition can not be questioned, and it was sufficient for the case then before the court. But the law goes further, and accordingly in the present case the court below put the defendant’s liability upon the ground that the slave was lost in consequence of the work to which he had been wrongfully put by the defendant’s officers ; and this is the correct ground. A party’s liability, in such a case, is founded upon his own wrong in putting another’s slave at any work without the owner’s permission, which justly subjects him to all the loss resulting from the employment.

All the defendant’s instructions that were proper to be given, were embraced in those the court gave. There is no error in the record, and the judgment must be affirmed.


text:
    Brueggeman et al., Plaintiffs in Error, v. Jurgensen, Defendant in Error.
    1. There is no equity for specific performance of a contract to convey land where the party against whom such equity is asserted has rendered a specific execution on his part impossible by conveying said land to a third person.
    2. The heirs of an intestate can not be joined as parties plaintiff with the administrator in a suit for the recovery of damages for the breach of a contract to convey land to such intestate.

      Error to St. Louis Land Court.

    Plaintiffs, the administrator, and heirs of one Brueggeman, deceased, set forth in their petition a contract entered into by defendant to conyey certain real estate to plaintiff’s intestate. The prayer of the petition is as follows : “ Plaintiffs therefore ask judgment for the specific performance of defendant’s agreement, and that he be compelled and decreed to make a reconveyance to the legal representatives of said Gerhard H. [plaintiffs’ intestate] of the property above described.” It' appeared in evidence that the defendant had made a conveyance of the real estate in question to one Stahl.
    The court instructed the jury that plaintiffs were not entitled to recover.
    The following instructions asked by the plaintiffs were refused by the court: “ 1. The jury are instructed that to find for the defendant because he has sold the property, the jury must believe from the evidence that the deed of Jurgensen and wife to Christian Stahl was a bona fide sale of the property, and made for a valuable consideration. 2. The jury are instructed that the deed of Jurgensen and wife to Christian Stahl is of no value, unless the jury believe from the evidence that it was made bona fide and for a valuable consideration. 3. The jury are instructed that, if the jury believe from the evidence that defendant covenanted to convey to Gerhard H. Brueggeman the property in dispute ; that said Gerhard H. Brueggeman is intestate, and plaintiffs his heirs ; that the conditions of the covenants to reconvey have been complied with by the plaintiffs ; that defendant, by a sale of the property of Christian Stahl, before the institution of this suit, has put it out of his power to comply with his covenant to reconvey, the jury will find for the plaintiffs such damages as the jury believe from the evidence the plaintiffs have sustained by the failure of defendant to comply with his bond.”

      J. & P. B. Garesché, for plaintiffs in error.

      Krum & Harding, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

This case stands on a non-suit, and we see no way in which the plaintiffs can be relieved from it. If we regard the suit as one to enforce tbe specific performance of a contract to convey lands, tbe petition is so framed that sucb relief can not be granted. It appears from the record that tbe title to tbe lot which tbe plaintiffs would have conveyed to them, is not in the defendant. He has passed it away for a valuable consideration, and bis vendee is not made a party to tbe suit. Whether that vendee is a bona fide purchaser, it is not necessary to inquire, as he is not before this court. It would be a vain thing, and the plaintiffs would not be at all advanced, to mate a decree vesting the title of the defendant in them, when it appeared that all the title the defendant ever had has been conveyed to another.

If we look upon the suit as one to recover damages for a breach of the covenant to convey, it is not free from difficulties. If it is an action to recover damages, the heirs of Brueggeman have no right to them. They can not have an action to recover damages for a breach of contract. The right to maintain such actions'is in the executor or administrator alone. If the heirs were permitted to join in such actions, a confusion would ensue which no court could disentangle. Parties should know what they are after before suit is brought, and frame their petitions accordingly. They «an not expect to have a judgment without any regard to the pleadings in the cause. A large latitude is allowed in making amendments. If they will not have them made before they come to this court, there is no power here to relieve them from the consequences of such neglect.

When it was ascertained that the defendant had conveyed away the lot in dispute, the plaintiffs might have amended their proceedings, and brought in the purchaser from the defendant as a party. Having failed to do this, they had no right to inquire into the bona fides of his purchase. He was no party to the suit, and could not be affected by it. The court, therefore, properly refused the plaintiffs’ first instruction, as it was designed to place before the jury the consideration of a subject wholly irrelevant.

The second instruction asked by the plaintiffs was properly refused, because it entirely omitted all consideration of the evidence in support of the allegation of a mistake in the covenant for the breach of which damages were sought to be recovered. The evidence clearly established the mistake, and the defendant was entitled to the benefit resulting from the correction of the error.

The other judges concurring, the judgment will be affirmed.


author: Soott, Judge,

text:
    Fischer, Respondent, v. Meyer’s Administratrix, Appellant.
    1. A. executed a promissory note to B. and C., who endorsed the same, and the same was transferred to D. 5 A. at the same time executed a deed of trust to B. and C., to secure them against their liability upon said note. The trustee, under the deed of trust, took possession of the trust property, and the proceeds of the sale of the same were more than sufficient to pay the promissory note. They were not however applied to the payment thereof. Meld, that whether D. had knowledge of the proceedings under the deed of trust or not, the liability of C. to D. was not thereby discharged.

      •Appeal from St. Louis Court of Common Pleas.

    The following facts appeared in evidence on the trial of this cause. One Strattman sold a grocery store and stock to Klute and Meyer, who immediately sold the same to one Kleeburg, in accordance with a previous understanding to that effect. For the purpose of raising money to pay Strattman, Kleeburg executed a promissory note for ¡$800, which was endorsed by Klute and Meyer ; and the said $800 were advanced by Fischer, the plaintiff, to Kleeburg, and were by him paid to Strattman. At the time of the sale and the execution of the note aforesaid, Kleeburg executed a deed of trust of said grocery, and the stock of groceries therein, to secure Klute and Meyer against their liability as endorsers upon said note. The trustee, under this deed of trust, entered into possession of said trust property, and made a sale thereof, the proceeds of which were more than sufficient to pay said promissory note. The evidence tended to show that the trustee took possession and made the sale of the trust property at the request of Klute or of Klute and Meyer, and that the proceeds of the sale were paid over to said Klute. Said proceeds were not applied to the payment of the note held by plaintiff Fischer. The sale by the trustee took place before the maturity of said note. This suit was originally commenced on said promissory note against Kleeburg and against Klute and Meyer’s administratrix. The suit was dismissed as to Kleeburg and Klute.
    The following instructions were given by the court on its own motion : “ 1. Under the pleadings in this cause, the plaintiff is entitled to recover, unless the defendant has shown to the satisfaction of the jury that the said note had been paid to the plaintiff. 2. If the note sued on is the same mentioned in the deed of trust read in evidence, and if the trustee, acting under the direction of Klute and Meyer, took possession of the property described in the deed of trust before the maturity of the note, and sold the same, and either paid over the proceeds of the sale to Klute and Meyer, or retained the same, then the said note has not been paid to the plaintiff, and the defendant is liable. 3. If the jury find from the evidence that the said trustee took possession of said property, sold the same, and received the proceeds thereof, under the direction of and for the plaintiff, in order to pay the note sued on, and that the proceeds of said sale were sufficient to pay said note, then the defendant is not liable to the plaintiff in this action. 4. If the jury find for the plaintiff, they should assess the damages at the amount of the note, together with four per cent, added, and interest on the aggregate sum at the rate of six per cent, per annum from the 20th of November, 1854, to the present time, if said note was actually negotiable [?] after the same was executed.”
    The defendant asked the court to give the following instructions, which were refused : “1. If the jury find from the evidence that before the sale by Bertram Kribben, trustee, all of the debts secured by the deed of trust read in evidence, except the note sued on, were paid, that the property mentioned in said deed of trust was sold by said trustee with the knowledge of the plaintiff, and that the amount realized from said trust sale was more than nine hundred dollars, the plaintiff can not recover in this case. 2. If the jury find from the evidence that Bertram Kribben, the trustee in the deed of trust read in evidence, with the knowledge and approbation of the plaintiff, sold the property described in said deed of trust, and as such trustee received the proceeds arising from said sale, and that the money so received by said trustee was sufficient to pay the cost of executing said trust, and the amount of indebtedness secured by said deed of trust, and [which] remained unpaid at the time of such sale, then they will find for the defendant.”

      S. H. Gardner, for appellant.
    Kribben, for respondent.
   Soott, Judge,

delivered the opinion of the court.

This may be a hard case on the defendant, but we see no cause of complaint that she has against the plaintiff. If those in whom her intestate confided have abused his confidence, that furnishes no reason why the plaintiff should be visited with the consequences of their misdeeds. The evidence in the case does not show that the plaintiff was in any way connected with the deed of trust. It was not given for his security, and he was in no way concerned with it. He relied on the defendant’s intestate and Klute for the ultimate payment of his debt, and they took the deed of trust as their indemnity for the endorsement of the note of Kleeburg. If their indemnity has failed without the fault of the plaintiff, why should he be deprived of his debt? We do not see how the fact that Myer, the intestate, and Klute, were accommodation endorsers of Kleeburg, if they were such, affects this transaction. But they were interested in the arrangement. They had purchased the grocery store of Strattan, and sold it immediately to Kleeburg ; and, to enable him to pay the debt they owed to Strattan, lent him their names as endorsers on the note given by Kleeburg to the plaintiff for the money loaned to him, which is the note on which this suit is brought.

Some stress was laid on the circumstance that the note was left with Kribben, the attorney of the plaintiff in this suit, and from that fact it is maintained that he was the attorney and agent of the plaintiffs, with full knowledge of all that was done in closing the trust under the deed. If the plaintiff had left the note with Kribben, we do not see how that can affect him.- The note was not due ; he could not have brought suit upon it; and if left with him it must have been as a mere depositary. But Kleeburg says he left the note with Kribben, and it is afterwards found in the possession of another witness in the cause. So that all that was done in closing the deed of trust was done without the knowledge or consent of the plaintiff. Indeed, the plaintiff had no authority to interfere, for the deed was not made for 'his indemnity, although a state of things might have arisen which would have entitled him to the advantage secured by it to the endorsers of the note.

With these observations we submit that the instructions given by the court below were not erroneous. The instructions asked by the defendant were properly refused. The knowledge of the plaintiff, even if he had any, which does not appear, of the proceedings under the deed of trust can not affect him. Nothing was done by the trustees and those secured by the trust but what they had a right to do by the terms of the deed. Had the plaintiff interfered and the debt been lost by such interference, the endorsers might have been discharged. The deed gave them power to have the property, if they deemed it advisable, taken and sold for their security before the debt was due to the plaintiff. Having this power, we do not see how his approbation, had any been given, would have altered the case. The trustee and cestui que trust acted as they had a right to do, and having so acted, if, by any means the proceeds of the trust sale were lost to the intestate of the defendant, the plaintiff can not be made the sufferer by it. There was no error in the instruction as to the four per cent, damages, the note being in the terms of the statute, and having been endorsed.

The final judgment for the costs was given against the plaintiff ; so all error on this score is taken away, whatever may have been previously entered on the record.

The judgment is affirmed ; the other judges concurring.


text:
    City of St. Louis, Defendant in Error, v. Cafferata, Plaintiff in Error.
    1. The city of St. Louis was empowered by its charter of March 3,1851, to prohibit the keeping open of stores, shops, and other places of business on Sunday; those transgressing the provisions of the fourth section of article 2 of the ordinance concerning misdemeanors (Rev. Ordinances, 1853, p. 514) are amenable to the penalties prescribed by said ordinance.

      Error to St. Louis Criminal Court.

    The charge against the defendant, Cafferata, was that he “ on Sunday, July 1st, 1855, and after the hour of nine o^clock in the forenoon of said day, did keep open his confec-tionary for business purposes, situate, &c., within the corporation limits of the city of St. Louis, contrary,” &c.
    The fourth section of article 2 of the ordinance concerning misdemeanors, (Rev. Ord. 1853, p. 514,) with the violation of which defendant was charged, is as follows: “ Sec. 4. Whoever shall, in this city, play on Sunday at billiards, ten pins, or other game of amusement, or any game or amusement in any highway, thoroughfare, or other public place ; or shall on that day sell or offer to sell any merchandise or fermented or distilled liquors or wines ; or shall, after the hour of nine o’clock in the forenoon of that day, keep his store, shop or other place of business open, shall be deemed guilty of a misdemeanor.”
    Upon the trial in the St. Louis Criminal Court, to which court this cause was taken by appeal from the decision of the recorder, the jury were instructed as follows : “ The defendant is charged with having committed a violation of the 4th section of the second article of the ordinance, entitled ‘ An ordinance concerning misdemeanors,5 which has been read in evidence. In passing upon this case, the jury have nothing to do with any statutory enactment of the legislature of this state ; nor is the policy or wisdom of the city council, in passing such an ordinance, a proper question for your consideration. The only question for your determination is, whether the defendant is guilty of the violation of said ordinance as charged; and if you find that defendant was the proprietor of a confectionary store situate in the city of St. Louis, as set out in the complaint ; that the first day of July last was a Sunday; and that defendant kept open the said store on that day, after nine o’clock in the forenoon, for business purposes, contrary to the provisions of the said ordinance — then you ought to find him guilty as charged, and assess a fine against him agreeably to the provisions of the ordinance of said city, fixing the penalty at not less than three nor more than one hundred dollars. The City of St. Louis, by its charter, has the power to pass ordinances regulating the manner in which business places shall be kept on Sunday, and to prohibit them from being kept open on Sunday for business purposes, as charged ; and this power may be exercised by the city by ordinance, entirely irrespective and independent of any statute of this state upon the same subject. If the defendant kept open a confectionary store of his after nine o’clock in the forenoon of that day above stated, and that was Sunday, and that he kept open the said store for business purposes, then the defendant is guilty, and so you should find ; and, in such case, it makes no difference whether the articles sold were of immediate necessity or not. If the jury find that the defendant is guilty, as charged, but can not agree as to the punishment, they can return a verdict so stating.”
    The defendant asked the court to give the following instructions, which were refused : “ 1. If the jury shall believe from the evidence that defendant did on the 1st day of July, being the first day of the week, called Sunday, keep open his place of business after 9 o’clock, only for the purpose of selling articles of immediate necessity, as food, nourishment and refreshment for man, they ought to acquit. 2. If the jury find from the evidence that defendant kept his place open on Sunday solely for the purpose of selling articles which were food or drink, not distilled or fermented, to be eat or drank at the time of sale, or were provisions sold for present consumption, or were articles of immediate necessity to the purchaser, they ought to acquit. 8. If the defendant did keep open his place of business on the first day of the week, called Sunday, 'for the purpose of selling ice-cream, soda water, fruits and cakes, for immediate use and consumption, and not for sale again, and that said articles are of immediate necessity, then the jury ought to acquit. 4.- The city can not exclude a person from keeping open his place of business on Sunday for the purpose of selling drugs, medicines, provisions or articles of immediate necessity; if the jury should therefore believe from the evidence that the defendant’s place of business was open for the purpose of selling food and refreshment, which was eat and drank at the time of sale, they ought to acquit.”
    The defendant was found guilty of the offence charged.

      Hart & Jecho, for plaintiff in error.
    McDonald, (city attorney,) for defendant in error.
   LEONARD, Judge,

delivered the opinion of the court.

The ordinance under which the defendant was convicted was a lawful exercise of the power given to the local government “ to make such rules, regulations, by-laws and ordinances for the purpose of maintaining the peace, good government and order of the city, and the trade, commerce and manufactures thereof, as they may deem expedient, not repugnant to the constitution and laws of this state.” (City Charter of March 3, 1851, art. 3, sec. 2.) The police regulations of the state upon this subject, to be found in the 34th and 35th sections of the 8th article of the act concerning crimes and punishments, have nothing to do with the present proceeding. The general legislature have regulated the subject for the whole state as they deemed proper, and the city government have made such local regulations as they thought fit for the good order and peace of the city. The provisions of the two laws are different, but there is no such inconsistency between them as to annul or in any way affect the provisions of the local law, (St. Louis v. Benton, 11 Mo. 61); and the defendant was subject to both laws and amenable to the penalties they prescribed. The judgment is affirmed.


text:
    Zimmerman et al., Respondents, v. Owens, Appellant.
    Í. The Supreme Court will not interfere with the verdicts of juries on the ground that they are against the weight of evidence.

      Appeal from Si. Louis Law Commissioner’s Court.

    /. Z. Smith, for appellant.

      S. H. Gardner, for respondent.
   Scott, Judge,

delivered the opinion of the eourt.

The defendant had the benefit of al! the instructions he asked. There was no other point of law made in the case. This court does not interfere with the verdict of juries on the ground that they are against the weight of evidence. Here, there was evidence on both sides. It does not moreover appear from the bill of exceptions that all the evidence is embodied in it.

The point made, if there is any foree in it, that one of the jurors was a non-resident of the state, is unsupported by any evidence whatever.

The other judges concurring, the judgment is affirmed.