author: WHITE, C. PER CURIAM:

text:
    THE STATE v. G. E. PACE, Appellant.
    Division Two,
    February 2, 1917.
    1. GENERAL VERDICT: Forgery. If tbe different counts of tbe information charge distinct offenses, a general verdict of guilty cannot be upheld. Where the first count charges defendant with the forgery of a certain promissory note, and the second count charges him with having the same forged instrument in his custody and possession with intent to utter it, a general verdict of “guilty of forgery in the third degree, as charged in the information” cannot stand.

      2. FORGERY: Comparison of Handwriting: Improper Admission. Error in the admission in evidence of a note purporting to be signed by a party whose name defendant is charged with -having forged, improperly admitted at the time because the signature of the party has-not been identified, is removed by the subsequent qualification of the witness who identifies the signature.
    3. -: -: Statute. The old rule that no paper offered for the sole purpose of furnishing a comparison with a writing alleged to be forged is competent where it would be an issue for the jury to determine whether the alleged genuine signature was in fact genuine, is modified by the statute (Sec. 6382, R. S. 1909) which requires the paper to be “proved to the satisfaction of the judge to be genuine;” and the very fact that he admits it in evidence is conclusive that he found it genuine, although his finding is not necessarily binding on the jury, for the statute notwithstanding he admits it in evidence requires that “such writing and the evidence respecting the same may be submitted to the court and jury.”
    Appeal from Dent Circuit Court. — Hon. L. B. Woodside, Judge.
    Reversed and remanded.

      J. J. Cope, Clyde C. Cope and G. C. Dalton for appellant.
    (1) It is impossible to tell from this verdict on which count the jury found the defendant guilty and it is obvious from the punishment assessed against him that they only intended to punish him for one of the distinct and separate offenses charged in the information; thi.s verdict so rendered is nothing more that a general verdict and is insufficient and cannot stand. The verdict must be certain, positive and free from all ambiguities. State v.- Pierce, 136 Mo. 40; State v. Harmon, 106 Mo. 635; State v. Bedell, 35 Mo. App. 551. (2) The State was permitted to prove that the note marked “Exhibit A” was a forgery by comparing the same with the note marked “Exhibit 0,” which it was never proven that Willis Pace had executed. This was error for which this case ought to be reversed.

      John T. Barker, Attorney-General, and Lewis H. Cook for the State.
    (1) It is settled in this State that where'there are several counts for different offenses of the same nature and for which the punishment is the same, there is no misjoinder, and a general verdict of guilty is good. State v. McDonald, 85 Mo. 539; State v. Gore, 70 Mo. 491; State v. Blan, 69 Mo. 317; State v. Lesterman, 68 Mo. 408; State v. Sattlev, 131 Mo. 464; State v. Schmidt, 137 Mo. 266; State v. Simpson, 126 Mo. App. 169; Kelly, Grim. Law & Prac., sec. 407. Where the several counts relate to the same transaction, but were framed differently to meet the proof, or each count is framed on a different section of the statute, a general verdict of guilty, and assessing the punishment at or within the maximum of that specified in any section on which any count is based, though no particular count or offense is specified, will be sustained. State v. Jackson, 90 Mo. 159; State v. Stewart, 90 Mo. 507. (2) By statute in Missouri, comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. R. S. 1909, sec. 6382; Kelly, Crim. L. & P., sec. 819; State v. Thompson, 141 Mo. 408.
   WHITE, C.

The appellant was convicted of forgery at the April term, 1916, of the circuit court of Dent County. The information upon which he was tried is in two counts. The first charges him, under section 4651, Revised Statutes 1909, with the forgery of a certain promissory note purporting to be made by G. E. Pace, J. A. Pace and Willis Pace, which note was payable to the Holland Piano Manufacturing Company. The second count charges the appellant, under section 4654, with having the same forged instrument in his custody and possession with intent to utter it.

The defendant, while engaged in the piano business at Salem, Missouri, in December, 1913, ordered four pianos from the Holland Piano Manufacturing Company of Minneapolis, Minnesota, and gave in payment for them two notes signed by himself as principal and by his father, Willis Pace, and his brother, J. A. Pace, as sureties, each note being for the sum of $230. One of these notes was paid at.maturity and the other was renewed. The renewed note is the one to which it is claimed the defendant forged the names of his father and brother.

It appears that the father and brother had signed the original notes and in fact had been accustomed to sign notes for the defendant at various times while he had been in business. Each of them states in his testimony that he had never refused to sign a note for the defendant when requested.

The father, Willis Pace, testified that he had no recollection of signing the note in question and thinks that he did not. He admitted on cross-examination, however, that he might have signed it. He admitted saying to an attorney who brought the note,to him for collection that he might have signed it. It is conceded that the brother of the defendant, J. A. Pace, did not sign- the note, but the defendant claimed that J. A. Pace gave him authority to sign the latter’s name to the note, he being too busy at the time to come to the defendant’s place of business for the purpose. J. A. Pace denied giving any such authority. The defendant asserts very stoutly in his testimonial that his father did sign the note. Testimony was offered by the State to show that the signature attached to the note, purporting to be that of Willis Pace, was not in fact his signature. The evidence further shows, in support of the second court of the information, that the note alleged to be forged was by defendant taken for the purpose of delivery to the Holland Piano Manufacturing Company in renewal of the former unpaid note, and was so delivered.

In the progress of the trial a witness, W. W. Young, a bank cashier, was shown a note marked “Exhibit C,” purporting to be signed by Willis Pace, and stated that the signature attached to the note was the signature of Willis Pace. He was then shown the note, “Exhibit A,” the note alleged to be forged in this case, and stated that the signature attached to it was not the signature of Willis Pace. The witness was not qualified in any manner as to his knowledge of the signature of the handwriting of Willis Pace. Both notes were then offered in evidence and exhibited to the jury over the objection of the defendant, who duly excepted. The witness was later recalled and was asked by one of the jury whether he saw Willis Pace sign the note marked “Exhibit C.” He answered that he did not, but was familiar with his signature and had seen it a great 'many times. No other question was asked of him for the purpose of qualifying him as to his knowledge of such signature. No other evidence was offered as to the genuineness of the signature to “Exhibit C.” The two notes were thereafter exhibited to other experts for the purpose of comparison. The admission of “Exhibit O’ in evidence under the circumstances is assigned as error.

Upon the issues thus presented the jury returned the following verdict:

“We the jury, find the defendant guilty of forgery in the third degree, as charged in the information, and we assess his punishment at imprisonment in the State Penitentiary for the term of two years.”

I. It is claimed by the defendant that the general verdict, because it did not designate on which count the defendant was found guilty, was a reversible error.

The general rule is, where an indictment is in two or more counts, each of which charges the same offense a different form, or where the several counts relate to the same transaction and are framed on different sections of the statute, to meet the exigencies occurring at the trial, or where the several counts state different degrees of the same offense, a general verdict of guilty will be sustained. Such is the ruling in cases cited by the respondent where a defendant is charged with murder in the first and second degrees and manslaughter, in different counts, as in the case of State v. Core, 70 Mo. 491, and the case of State v. Blan, 69 Mo. 317; and where robbery is charged in different forms in several counts, as in the case of State v. McDonald, 85 Mo. 539. Also, in the case of State v. Sattley, 131 Mo. 464, cited by respondent, where the defendant was charged in one count with feloniously receiving deposits as cashier of a bank, while knowing the bank was in a failing condition, and in another count with having assented to the creation of ran indebtedness of the said bank, while knowing it was in a failing condition, a general verdict was sustained.

On the other hand, the rule is well established that a general verdict where the several counts of the indictment charge several distinct crimes will not be upheld. Such is the case where several different larcenies were charged in the different counts of the indictment. [State v. Harmon, 106 Mo. 635.]

Another class of cases cited by respondent are those where the different counts of the indictment did not charge in different forms the same offense, nor yet charge offenses arising out of .entirely different transactions, but where, the several acts grew out of the same transaction and that charged in one count was in the nature of a corollary to the original offense charged in another count. In such cases the question as to whether distinct offenses were charged in the several counts usually arose on a motion to compel the State to elect on which count it would proceed to trial. This on the theory that a defendant could not be tried at the same time and in the same trial for two different and distinct crimes. [State v. Testerman, 68 Mo. 408; State v. Daubert, 42 Mo. 242.] The last is. a leading case, and often cited in later decisions. It was held in that case, where the indictment contained two counts, one for forgery and. the other for uttering the forged instrument, that it was not error to overrule a motion to elect. This, however, could not be a test as to whether a general verdict in such a case would be proper, because in all such eases, it is held to be discretionary with the trial court whether such a motion should be sustained. The trial might proceed, if the court so ordered, and- the jury, under proper instructions, could determine upon which count, if any, to find the defendant guilty. In the case of State v. Carragin, 210 Mo. 351, the defendant was charged in one count with forging an instrument and in another count with uttering the same instrument, and was found guilty by the jury on both counts. It was held that this was error for the reason that a defendant could not be convicted in the same trial for two different and distinct felonies. That case, and others, establish the proposition that forgery is one offense and uttering the forged instrument is a different and distinct offense. [State v. Williams, 152 Mo. 115; State v. Schneiders, 259 Mo. 319; State v. Christian, 253 Mo. 382, l. c. 393.]

The precise question presented here was decided by this court in the case of State v. Pierce, 136 Mo. 34. There the defendant was charged in the first count with forging an instrument, and in the second count with uttering the forged instrument, and it was held a general verdict of guilty was reversible error. Such a verdict lacks the precision and certainty‘which is necessary to its validity. That case has been cited without criticism, and usually with approval, in the following cases, and perhaps others. [State v. DeWitt, 186 Mo. l. c. 67; State v. Standley, 232 Mo. 23, l. c. 27; State v. Miller, 255 Mo. 223, l. c. 231; State v. Burke, 151 Mo. 136, l. c. 146.]

The general verdict, therefore, of guilty, without designating which of the two different and distinct offenses of which the defendant was found guilty, is error for which the cause must be reversed.

II. Complaint is made of the familiar instruction, given for the State, to the effect that, while the defendant was a competent witness on his. behalf, in considering the weight to be given his testimony the jury might consider the facts that he was the defendant on trial and testifying in his own behalf. This same instruction was condemned by the Court In Banc in the case of State v. Finkelstein, ante, p. 632.

III. “Exhibit C” was improperly admitted in evidence at the time it was offered, on the ground that the signature of Willis Pace had not been identified. That objection, however, was removed by the subsequent qualification of the witness Young, who identified the signature.

Waiving the question as to whether the objection to its admission on other grounds was sufficiently specific, no reason appears for its exclusion.

Under the rule at common law, any writing irrelevant to the record was inadmissible when offered for the sole purpose of furnishing a comparison with a writing alleged to be forged. The rule as adopte'1 'n Missouri is stated thus:. Such papers, containing the alleged genuine writing of the party whose signature is claimed to be forged, can only be offered in evidence to the jury when no collateral issue can be raised concerning them, that is, when the papers are-either conceded to be genuine, or the circumstances are such as the other party is estopped to deny them. That is to say, such papers should not be admitted in evidence where it would be an issue for the jury to determine whether the alleged genuine signature was iñ fact genuine. [State v. Clinton, 67 Mo. 380, l.0 c. 385; State v. Minton, 116 Mo. 605, l. c. 614; Greer v. Lumber and Mining Co., 134 Mo. 85, l. c. 96.] This rule has been modified by a statute, giving more liberty for the introduction of such writings for comparison. Section 6382, Revised Statute 1909, is as follows:

“Comparison of a disputed writing with any writing proved to-the satisfaction of the judge to be genuine shall be permitb d to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. ’ ’

Several cases have come before this court where the question has arisen since the enactment of that statute.. [Sanders v. North End Building & Loan Assn., 178 Mo. 674, l. c. 680; State v. Thompson, 141 Mo. 408; State v. Stark, 202 Mo. 210, l. c. 221.] In none of them, however, did the court define the limits of the admissibility of such writings, for it appears that in none of them was the genuineness of the writing offered for comparison brought in question. It appears from the wording of the statute that, while the writing thus offered must be “proved to the satisfaction of the judge to be genuine,” the jury is not necessarily bound by the judge’s conclusion upon the matter, for “such writing and the evidence respecting the same may be submitted to the court and jury,” etc. This it seems modifies the old rule that the jury could not pass upon any collateral issue concerning such writings. While the judge must first be satisfied that they are genuine, the fact that the judge in this case admitted the note in evidence is conclusive that he found it genuine. He is presumed to know this statute and understand his duty in respect to it.

The judgment is reversed and the cause remanded.

Boy, G., concurs.

PER CURIAM:

The foregoing opinion of White, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: ROY, C. PER CURIAM:

license: Public Domain

text:
    THE STATE v. FRANK C. FREDERICI, Appellant.
    Division Two,
    February 2, 1917.
    1. WIFE ABANDONMENT: Evidence. In a prosecution of a husband for wife abandonment, he should be permitted to show by cross-examination of her what disposition she made of personal property left in her possession at the time he left her.
    2. -: Sufficiency of Evidence. The support of the wife required by the statute, of a husband charged with wife abandonment, must be a reasonable one, taking into consideration the defendant’s financial means; and where there was evidence that defendant had deliberately and finally abandoned his wife, that she was destitute and sick when he left her, that she had no.property at the time of the marriage, that in over eight months he had furnished her only $98, that this sum together with the money realized from the sale of some articles left by him with her amounted to only $123, and that this was her only means of support, the question of defendant’s guilt or innocence was one for the jury.

      Appeal from St. Louis Court of Criminal Correction.— Hon. Calvin N. Miller, Judge.
    Reversed and remanded.

      Oliver J. Miller for appellant.
    (1) The court erred in not discharging defendant on his several motions, (a) It is incumbent upon the State to prove beyond a reasonable doubt that the alleged abandonment is without good cause and with criminal intent. State v. Doyle, 68 Mo. App. 219; State v. Loving, 184 Mo. App. 82. (b) Two elements are essential to constitute this offense; the criminal intent of abandonment without cause, and the failure and refusal to provide for the wife. The charge of this offense is not made out when the evidence shows that the wife was living on means provided by the husband. State v. Fuchs, 17 Mo. App. 458; State v. White, 45 Mo. 512; State v. Brunning, 60 Mo. App. 51. (c) The second essential element to make this offense, fails when it is shown that reasonable tenders and offers of support were made. State v. White, 45 Mo. 512. (2) The court erred in excluding relevant and material testimony. It erred in not permitting defendant to cross-examine the prosecuting witness on the question of the disposition of a certain piano, (a) Because it bore directly on question of means left with wife that could be used toward support, and the disposition thereof in a way which would raise the presumption that the wife had sufficient means of support left with her or given to her, by the husband. State v. Fuchs, 17 Mo. App. 461. (b) It erred in not permitting the defendant to state his reason for discontinuing his remittance to his wife on January 25, 1913. This offense is not malum in s&, but malum prohibitum, made so by statute, and evidence in defense tending to show an absence of criminal intent "is material and relevant.

      John T. Barfcer, Attorney-General, and James P. Kem for the State,
    (1) The trial court did not err in refusing to discharge the. defendant, (a) There was substantial evidence of the defendant’s failure or refusal to provide for and maintain his wife. State v. Weyant, 149 Iowa, 457; State v. Waller, 90 Kan. 829; Burton v. Commonwealth, 109 Ya. 800. (b) Whether the defendant acted under a mistake was a question of fact, the disposition of which by the trier of the facts is conclusive on appeal. 1 Bishop’s New Criminal Law (8 Ed.), p. 302;' Marshall v. State,' 49 Ala. 21; Goetz v. State, 41 Ind. 162. (2) The court did not err in excluding irrelevant and immaterial testimony, (a) It did not err in permitting defendant to cross examine the prosecuting witness on the disposition of the piano, (b) The appellant cannot now complain that the court did not permit the defendant to state what he had been advised by his lawyer.
   ROY, C.

Defendent was convicted of wife abandonment and sentenced to pay a fine of $500. Lie appealed to the St. Louis Court of Appeals, where, in an opinion by Allen, J., the judgment was reversed and the defendant discharged. Nortoni, J., dissented, deeming the majority opinion contrary to the opinion of this court in Gannon v. Laclede Gaslight Co., 145 Mo. 502, and the cause was therefore certified to this court. The opinions filed in the St. Louis Court of Appeals are reported in 184 S. W. 170.

The parties were married June 291, 1910. The wife had a daughter by a previous marriage. The defendant has no children.

About December, 1910, the defendant purchased a house in St. Louis for $1900, all on time payments. They moved into the house at once, and lived together there until July 4, 1912, on which day defendant abandoned his home, leaving it, and all the property therein in possession of the wife, and leaving her in possession also of some chickens which were kept on the premises, not over fifty in number. - Up to that time there had been paid on account of the purchase of the house, interest, taxes and

water-rates ..................................$441.06

For improvements ...........................• 187.75

For chicken house ....................;...... 126.00

For furniture ............................... 392.90

For carpets ................................. 44.18

For household goods ........................ 211.88

For piano (principal) ........................ 201.00

For piano (interest) ......................... 10.12

$1614,89

The wife testified that she paid a portion of those items with her own funds. The defendant testified that the wife had no money, and that he made all those payments. There was still due at the time to the Baldwin Piano Company $64: on the piano.

The defendant worked for a chemical company, and in addition did a collection business. The wife testified that he made from $200 to $250 a month, but he testified that his earnings did not exceed $85 monthly. The wife testified that the defendant at times drank to excess and stayed out two or three nights of each week; that she gave him no cause to leave her; that he would not support her, nor pay the grocery bills; that they quarreled on that account; and that he packed his clothes and left without saying a word.

Mrs. Miller for the State testified that the defendant and his wife seemed to get along pleasantly, for a while after their marriage; that the wife was sick about two weeks before defendant left, and that she (witness) was there to care for her; that she never saw the wife mistreat her husband; that defendant went away and came back in ten days, when witness said to him, “Please come back to your wife and do what is right; we all like you, and you have a nice little home here, and you can pay it out and have it in your old age,” and that he answered, “I have made up my mind and I will;” that he came back and stayed all night and went away, and after some time came another night, then left and never returned.; that he refused to pay any bills and left her destitute and without means for support; that they quarreled about money matters, and that the wife told him he ought to pay his grocery hills.

The wife testified that the defendant told her that he had “affinities” among the other women.

In August after leaving his wife the defendant sued for divorce, hut soon after dismissed his suit. While the suit was pending the court ordered the payment of five dollars a week alimony. The defendant paid three weeks ’ alimony before the suit was dismissed. The defendant afterwards made such weekly payments of five dollars beginning November 18, 1912, and ending on January 25, 1913.- He paid nothing after that. This prosecution was begun March 18, 1913. The defendant testified that he furnished his wife after the separation with money amounting in all to about $98, while she placed it at $65. She testified that she sold a typewriter for $10, a kitchen cabinet for $10, and a bookcase for $5, and that she bought bread with the money. The piano which was in defendant’s house when he left home was returned to the-Baldwin Company, and a “player piano,” the price of which was $725, was put in place of it. Counsel for defendant sought, on cross-examination of the wife, to learn the particulars of that exchange, for the purpose ■of showing that the old piano was traded in on the new as a payment for $241 thereon. The trial court refused such cross-examination.

Defendant testified that he stopped making his weekly payments because he was informed that his wife had sold the piano for $100. He also testified that he offered the wife $100 for the piano.

The State read in evidence two letters from the defendant to his wfife. One was dated July 18, 1912, and directed her to turn the piano over the Baldwin Company, saying that he would not be able to make any more payments on it. The other was dated September 4, 1912, and offered her $100 if she would deed the house to him.

The defendant testified that he left his wife because she made it too disagreeable for him; that he paid his bills; that his wife often locked him out at night; that she called him offensive names and charged him with running with other women; that she would go through his pockets at night, and that his money would be gone the next day. She testified that she sometimes went through his pockets, but that she had never'found anything but car fare.

I. We agree with the St. Louis Court of Appeals that the defendant should have been permitted to cross-examine the wife as to the particulars of the deal by which the first piano was returned to the Baldwin Company and another one put in its place The first piano was the property of this defendant. He had almost finished paying for it. While being tried for the alleged offense of abandoning his wife, it was justly due him that he ‘should be informed as to what disposition she had made of his property. It cannot be foreseen what the disclosures may be on such cross-examination. The facts thus developed may furnish a defense to this prosecution, or may be of such a nature as to convince the triers of fact mat the wife was not left by the defendant without sufficient means of support.

II. We are clearly of the opinion that the question of the guilt or innocence of the defendant under the facts in evidence was one for the jury. There was an abundance of evidence in support of every point essential to the prosecution. It shows that he had deliberately and finally abandoned her; that she was destitute and sick when he left her. He testified that she had no property. That showing, once made, is good until it is- rebutted. He did not claim to have furnished her with more than $98 from July 4, 1912, to March 18, 1913. That put with the $25 realized by her on the sale of articles of his amounts to $123, which was the only means of subsistence she had during a period of eight and a half months.

In State v. Maher, 77 Mo. App. 401, the court in effect held that the support required by the statute must be a reasonable one taking into consideration the defendant’s financial means. It was for the'triers of fact to say whether the defendant had made a satisfactory showing in that respect. Those triers of fact were not hound to take as-true the defendant’s statement that he had been informed that his wife had sold the piano for $100.

It was said in Gannon v. Laclede Gaslight Co., supra:

‘ ‘ The converse of that proposition, which was assumed by the trial judge in this, as in the Reichenbach ease (Reichenbach v. Ellerbe, 115 Mo. 588), that when either party to a controversy submits testimony (other' than written instruments that call for the court’s construction of their meaning and import) to sustain his or her burden of proof, the other party, though offering nothing to contradict it, is entitled to have the jury pass upon the whole ease, and to determine the credibility of the witnesses and the weight to be given to their testimony, has from our earliest reported cases been often asserted with much positiveness.”

That proposition is affirmed as late as Johnson v. Grayson, 230 Mo. l. c. 394, and by Aülen, J., in Tierney v. United Railways Co., 185 Mo. App. l. c. 724.

Because of the error mentioned in the first paragraph of this opinion the judgment is reversed and the cause is remanded for a new trial.

White,-C., concurs.

PER CURIAM:

-The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


author: WILLIAMS, J.

text:
    THE STATE v. J. W. NICOLAY, Appellant.
    Division Two,
    February 2, 1917.
    INDICTMENT: Physician: Prescription for Intoxicating Liquor. The opinion of the Springfield Court of Appeals in this case, -Mo. App.-, 184 S. W. 1183, concerning the sufficiency of an indictment charging defendant as a physician with issuing a certain prescription for intoxicating liquors in violation of Sec. 5784, R. S. 1909, announces the correct rule of law.

      Appeal from Polk Circuit Court. — Hon. G. H. Skinner, Judge.
    Afeirmeu.

      Re-chow & Pufahl for appellant.

      John T. Barker, Attorney-General, and L. H. Cook for the State.
   WILLIAMS, J.

Under an indictment charging defendant as a physician with issuing a certain prescription for intoxicating liquor in violation of section 5784, Revised Statutes 1909, defendant was tried in the Polk Circuit Court, found guilty, and his punishment assessed at a fine of fifty dollars.' Thereafter an appeal was duly taken by the defendant to the Springfield Court of Appeals and that court wrote an opinion affirming the judgment of the trial court, State v. Nicolay, 184 S. W. 1183. The Springfield Court of Appeals deemed its opinion to be in conflict with the decision of the St. Louis Court of Appeals in the case of State v. Davis, 129 Mo. App. 129, and in pursuance of constitutional authority certified the case here.

The only questions raised upon appeal concern the sufficiency of the indictment. All of the questions raised upon this appeal are fully and ably treated by the Springfield Court of Appeals in its opinion by Farrington, J. We have reached the conclusion that the views therein expressed are sound and that upon the point of conflict the rule announced by the Springfield Court of Appeals should prevail. Under such circumstances it would serve no useful purpose to prolong the discussion here. For. the reasons expressed in the opinion of the Springfield Court of Appeals (citation above), the judgment of the trial court is affirmed.

All concur.


text:
    CHARLES C. CROW, Appellant, v. J. A. MITCHELL and BERTHA MITCHELL.
    Division Two,
    February 2, 1917. .
    1. THEORY OF PETITION: Trial. A law case tried on the theory of the petition is not tried on the wrong theory.
    2. ACTION ON ATTORNEY’S CONTRACT: Suit for Breach of Promise: Subsequent Marriage. Where a widow entered into a written contract with an attorney to bring a suit against a physician for breach of a promise to marry, by which he was to receive one-half of whatever sum she should recover by suit or receive by settlement or agreement, and he institutes such suit and afterwards she and the physician marry, he cannot, in an action against them based upon the contract, recover one-half of any property rights accruing to her by operation of law as the result of her marriage to the physician, or any part of the value of the marriage to her; and instructions for defendants, allowing plaintiff to recover if she received either money or other property by agreement with the physician, being in harmony with the theory of the petition, do not submit the case to the jury upon a wrong theory.
    Appeal from DeKalb Circuit Court-. — Ho». Alonzo D. Burnes, Judge.
    Affirmed.

      L. G. Gabbert and Hughes & Whitsett for appellant.
    (1) Tbe answers being general denials, the only issues presented were whether plaintiff performed any service under tbe contract, and if so, the measure of damages. (2) After plaintiff had entered upon the performance of the contract, Bertha Mitchell, by marrying her co-defendant, made it impossible for plaintiff to perform the contract further on his part. The law regards this a complete performance on his part. Pond v. Wyman, 15 Mo. 175; Nearns v. Hobart, 25 Mo. 352; Stinberg v. G-ebhart, 41 Mo. 519; Walker v. Lundstrum, 132 Mo. App. 367; Boland v. Quarry Co., 127 Mo. 521; Wheeler v. Land Co., 193 Mo. 296; Kersey v. Q-arton, 77 Mo. 645; Reynolds v. Clark County, 162 Mo. 680. (3) Upon the disputed testimony of both plaintiff and defendants, plaintiff, was entitled to recover one-half the value of her marriage to the doctor. The written evidence' (undisputed) shows that she herself placed the value of this at $30,000. Therefore, as against her plaintiff was entitled to recover one-half of that sum. (4) This should have been taken as the true measure of the value of her marriage to Dr. Mitchell, who was shown to be a man of great respectability and large property holdings, unless defendants should show that said marriage was of less value. That it was of less value was neither pleaded, not attempted to be proven. (5) It follows that each of the instructions asked by plaintiff ought to have been given; -and each of the instructions given for defendants should have been refused. The case was tried on a wrong theory. Hoster v. Long, 80 Mo. App. 234; Bank v. Hainline, 67 Mo. App. 483. (6) Plaintiff had a lien on the fruits of the cause of action, which he was employed to, and did, sue on, and therefore Dr. Mitchell is liable for the same amount as his wife is liable for. Young v. Transit Co., 109 Mo. App. 235; Lipscomb v. Adams, 193 Mo. 530; Pisher-PIanson v. Bailroad, 173 N. Y. 493; Lawson v. Tel. Co., 178 Mo. App. 124; Taylor v. Bailroad, 207 Mo. 49'5. (7) The court eliminated by its instructions the fact that by dismissing her suit and marrying Dr. Mitchell, Mrs. Perkins got all she sued for; a husband, a living for herself and children, her happiness restored and all expectancies guaranteed to her under the law.

      W. M. Fitch for respondents.
    (1) The character of an action must be determined by the petition. Huston v. Tyler, 140 Mo. 262; Cole v. Armour, 154 Mo. 350; Hood v. Nicholson, 137 Mo. 414; Const. Co. v. Wrecking Co., 137 Mo. App. 399; Quigley v. King, 182 Mo. App. 207. (2) Plaintiff cannot sue on an express contract and recover on a quantum meruit. Cole.v. Armour, 154 Mo. 350; Menefee v. Diggs, 186 Mo. App. 663; Stanley v. Whitlow, 181 Mo. App. 464; Michael v. Kennedy, 166 Mo. App. 466. (3) Plaintiff cannot sue on an express contract and recover on one implied. Walker v. Bohannan, 234 Mo. 137; Quigley v. King, 182 Mo. App. 205; Michael v. Kennedy, 166 Mo. App. 466. (4) Plaintiff must recover, if at all, On the contract pleaded. Walker v. Bohannan, 243 Mo. 137. (5) Plaintiff insists that under his contract with'Bertha Perkins, now Mitchell, he became entitled to one-half of the amount of actual and punitive damages sued for (both of which were unliquidated), by reason of the marriage of the parties to the original suit brought, notwithstanding the fact that appellant’s client received no money or property from the defendant in said suit either before, at or after the marriage, and no contract under which she could or would receive any money or property from him. Such a construction of appellant’s contract makes it one against public policy and void, because it would be a contract in restraint of marriage. Knost v. Knost, 229 Mo. 170; Williams v. Cowden, 13 Mo. 211; Winninger v. Mitchell, 139 Mo. App. 424; 9 Cyc. 518; Donohue v. Donohue, .159 Mo. App. 612. (6) The facts in the case at bar do not bring it within the rule of the cases cited in appellant’s brief. Where a plaintiff dismisses a suit the plaintiff’s attorney is not entitled to one-half of the amount sued for, regardless of what the plaintiff received by dismissing the suit. The eases cited do not so hold, where the attorney had a contract for a contingent fee. In such case, if the plaintiff should dismiss the suit, and refuse to prosecute the same, and did not receive any property or money for dismissing the suit, or in settlement thereof, then the plaintiff’s attorney, if entitled to anything, would be entitled to recover for .the reasonable value of his services, and no more. This is the rule of reason; he would have no right against the’ defendant in such case.
   ROY, C.

Plaintiff sued on a written contract for compensation for services as an attorney. There was a verdict for defeudants and plaintiff has appealed.

Bertha Perkins, a widow with two small children but without any property, was engaged to marry Dr. J. A. Mitchell, a widower with one child and well to do financially. For some reason not stated, but evidently not going to tbe discredit of Mrs. Perkins, Dr. Mitchell “backed out” of the contract.

The widow engaged Mr. Crow, plaintiff here, as her attorney, to prosecute a suit against the doctor for “breach of promise.” There was a written contract between plaintiff and Mrs. Perkins, which, after a recital of the facts contained the following: “Now therefore, it is agreed by and between the parties hereto that said party of the second part will institute such suit or suits as may be necessary, prosecute same to a final termination, to whatever court or courts same may be taken, and perform all necessary legal services in the case; and in consideration for the performance of said services, party of the first part agrees to pay party of the second part a sum of money equal to one-half of whatever sum or sums of money may be recovered or obtained on account of the breach of said contract, whether said money is obtained on execution, or by settlement, compromise or agreement.

“It is further understood and agreed that no settlement, compromise or adjustment of said case or cases will be made by either party to this contract, without the consent of the other party thereto.”

Such suit was brought by this plaintiff in the name of . Mrs. Perkins against Dr. Mitchell for $30,000 as damages for such breach of promise. Thereafter the engagement to marry was renewed, that suit was dismissed, and the wedding followed. This suit followed the wedding.

The petition herein sets out in haec verba the contract between the plaintiff and Mrs. Perkins, and then proceeds as follows: “Plaintiff states that thereafter and in the performance of his duties, under the terms of the contract herein set forth, this plaintiff prepared a petition and instituted a suit in the circuit court of DeKalb County, returnable to the October term of the circuit court, 1912, wherein Bertha Perkins was plaintiff and J. A. Mitchell was defendant, wherein plaintiff, in said suit so instituted, for Bertha Perkins, prayed in the petition for the sum of thirty thousand dollars for and on account of Dr. J. A. Mitchell having refused to carry out and perform a promise of marriage with Bertha Perkins, plaintiff in said suit.

“Plaintiff states that long after the institution of said suit, Bertha Perkins and Dr. J. A. Mitchell intermarried, and prior to their marriage and since said' marriage, both Bertha Perkins, no.w Mitchell, and Dr. J. A. Mitchell, have undertaken by wrongful and unlawful acts and conduct, to avoid the payment to plaintiff of compensation provided'for in the contract hereinabove set forth.

“Plaintiff states that at and prior to the time of the marriage of Bertha Perkins and Dr. J. A. Mitchell, Dr. Mitchell was possessed of a large amount of property, both real and personal, consisting of life insurance, real estate, personal property, to the amount of fifty thousand dollars, and that at and prior to the time of said marriage Dr. J. A. Mitchell and Bertha Perkins, now Mitchell, entered into an agreement by the terms of which agreement Bertha Mitchell received one-half of all the-property owned and possessed by said Dr. J. A. Mitchell, including life insurance, and that said agreement was entered into long after the institution of the Suit hereinabove referred to, instituted by this plaintiff as attorney for Bertha Perkins, now Mitchell; and that Dr. J. A. Mitchell entered into a fraudulent arrangement and conspiracy with Bertha Mitchell, by which it was sought to prevent the payment to plaintiff for services performed in accordance with the contract hereinabove set forth, and that said Dr. J. A. Mitchell and said Bertha Perkins, now Mitchell, who is in the absolute control and under the domination of said Dr. J. A. Mitchell, are attempting to carry out the fraudulent scheme entered into, to defraud this plaintiff of compensation provided for in said contract, for the services performed and to be performed by plaintiff herein.

“Plaintiff states that as a direct result of the institution of said suit, Bertha Perkins, now Mitchell, has profited in the sum of twenty-five thousand dollars, and in addition thereto has obtained a home for her two children, born .of a former marriage, with an agreement to care for, maintain and educate said children, which is of the reasonable value of five thousand dollars, so that Bertha Perkins, now Mitchell, has profited by reason of the institution of said suit in the sum of thirty thousand dollars, one-half of which justly belongs to plain tiff in this suit, in accordance with the terms of the contract set out in this petition, and plaintiff’s damages thereby in the sum of fifteen thousand dollars. .

“Wherefore, plaintiff prays judgment against defendant and each of them in the sum of fifteen thousand dollars and his costs in this behalf expended.”

The separate answers of the defendants were general denials.

On the trial the- evidence tended to prove, and the defendant Bertha Mitchell admitted on the witness stand, that Mr. Crow, at her request, drew .a form of contract between her and Dr. Mitchell in settlement of their differences, by which it was provided that the property of both of them should be owned equally by them during the marriage, and that all children of both parties, including those of each of them born of former marriages, should share equally in the property of -both at their death. It further provided that the said two children of Bertha Perkins should be taken into the Mitchell home and educated and treated as the children of both parties. But she testified that Dr. Mitchell did not agree to such contract. There is no direct evidence that such contract was ever agreed to by ‘Dr. Mitchell. The evidence for the defense is to the effect there was no agreement between the defendants at or prior to their marriage as to their property rights.

The plaintiff asked the following instructions which were refused:

“A. The court instructs the jury that under the law and the evidence in this case your verdict cannot be for the defendant Bertha Mitchell, but as to her, your verdict may be for the plaintiff in a nominal sum.”
“B. The court instructs the jury you must, under the pleadings, and the evidence, find for the plaintiff in some nominal sum.”

The court at the instance of defendants gave the following with other instructions:

‘‘1. The-court instructs the jury that even though the jury may find and believe from the evidence that there was some attempt to make a property settlement between the defendant, J. A. Mitchell and Bertha Perkins before their marriage, but that when all of the evidence is considered, the jury shall find that no such settlement was in fact made, or agreed upon between them, then the jury are instructed that they cannot consider such overtures of settlement, if any, made by or between the defendants herein.
“2. The court instructs the jury that the contract between Bertha Perkins and 0. C. Crow did not, in law, prohibit the said Bertha Perkins from entering into marriage with J. A. Mitchell, but that she-had a right, under the law, to enter into such marriage, and if the jury shall believe from the evidence that Bertha Perkins received no property, or benefits under her said marriage with J. A. Mitchell, or for dismissing her suit against him, except such as may be bestowed upon her under the law, by reason of such marriage, then the plaintiff cannot,recover herein, and your verdict must be for the defendants.”

The petition does not charge that Mrs. Perkins wrongfully dismissed her suit against Dr. Mitchell and thus prevented this plaintiff from carrying that suit to a sucessful termination, and it does not ask for a recovery on a quantum meruit based on such fact. It does not even allege that the former suit was ever terminated, by a dismissal or otherwise. It does plainly charge that, by agreement between the defendants, Mrs. Mitchell acquired one-half of the doctor’s property. That was denied by the defendants’ answer. The case was, under the instructions, submitted to the jury on that theory.

Appellant says in his brief that those instructions for the defendants were wrong, and that they submitted the case to the jury on the wrong theory; that the plaintiff herein should have been.permitted to recover one-half of the value of Mrs. Perkin’s marriage to the doctor. To make the point plain we quote from plaintiff’s brief as follows: '

“Upon the undisputed testimony of both plaintiff and defendants, plaintiff was entitled to recover one-half the value of her marriage to the doctor. The written evidence (undisputed) shows that she herself placed the value of this at $30,000. Therefore, as against her plaintiff was entitled to recover one-half of that sum.
“This should have been taken as the true measure of the value of her marriage to Dr. Mitchell, who was shown to be a man of great respectability and large property holdings o'nless defendants should show that said marriage was of less value. That it was of less value was neither pleaded, nor attempted to be proven.
“It follows that each of the instructions asked by plaintiff ought to have been given; and each of the instructions given for defendants should have been refused. The case was tried on a wrong theory. ’ ’

It is sufficient to say that it was tried on the theory of the petition. If it was tried on the wrong theory it was brought on the wrong theory.

The plaintiff’s contract with Mrs. Perkins provided that he should get half of the money which she should recover or obtain for the breach of such contract of marriage, whether obtained “on execution, or by settlement, compromise or agreement.”

The instructions for the defendants allowed plaintiff to recover if Mrs. Mitchell got either money or other property by agreement from Dr. Mitchell. The contract sued on herein does not give plaintiff any interest in any property rights accruing to Mrs. Mitchell by operation of law as the result of her marriage to Dr. Mitchell, nor does it give plaintiff any part of the value of such marriage.

The judgment is affirmed.

White, G., not sitting.

PER CURIAM:

The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


author: Richardson, Judge,

text:
    The State, Respondent, v. Dalton, Appellant.
    1. J. D. and M. G-. were jointly indiqted for a felonious assault upon one C. H. The indictment charged that they in and upon one C. H. “ feloniously and wilfully did make an assault, with a certain knife of the length, &c., which they the said J. D. and M. Gt. then and^there in their right hand had and held, with the intent'then and there him, the said C. H., with the knife aforesaid, wilfully and feloniously to kill, against,” &c. Held, that the indictment was sufficient to sustain a conviction thereon.
    2. Evidence of character, to he admissible, must be restricted to that trait of character in issue.

      Appeal from St. Louis Criminal Court.

    John Dalton and Michael Gaughy were jointly indicted for a felonious assault, with intent to kill, upon one Charles llauf-meister. The second count of the indictment is as follows : “ And the grand jurors aforesaid, upon their oaths aforesaid, do further present that John Dalton and Michael Gaughy, late of St. Louis, in St. Louis county, on the thirtieth day of September, in tlie year of our Lord one thousand eight hundred and fifty-seven, at St. Louis county aforesaid, with force and arms, in and upon one Charles Haufmeister, in the peace of the state then and there being, feloniously and wilfully did make an assault, with a certain knife of the length of sis inches, and of the breadth of two inches, which they, the said John Dalton and Michael Gaughy, then and there in their right hand had and hold, with the intent then and there him, the said Charles Haufmeister, with the knife aforesaid, wil-fully and feloniously to kill, against the peace and dignity of the state.”
    The jury found the defendant Dalton guilty as charged in the above writ.

      Shreve, for appellant.

      Mauro, (circuit attorney,) for the State.
    I. The indictment is good. (Whart. C. L. 117; State v. Fley, 2 Brev. 388 ; State v. Green, 4 Strob, 128 ; Davis’ Precedents, 151; Commonwealth v. Gallagher, 6 Mete. 565 ; R. C. 1855, p. 567.) If defective it is certainly cured by the statute of jeofails. (R. C. 1855, p. 1177.)
   Richardson, Judge,

delivered the opinion of the court.

There is no practical distinction in crime between principals in the first and second degree; for if two persons are charged as principals — one as the immediate perpetrator of the injury, and the other as aiding and abetting — it is immaterial which of them is charged as having inflicted the wound or struck the blow, inasmuch as the law imputes the injury given by one as the act of the other. (Whart. Crim. Law, 117.) So that an indictment that A. gave the blow and B. was present and abetting, is sustained by evidence that B. gave the blow and A. was present and abetting. (1 East P. C. 350; 1 Salk. Rep. 335.) But the observation that no distinction is made in this respect in indictments gives no countenance to the practice of charging, against propriety and the truth, tliat both held the same knife, club or pistol in the right hand ; and the cases referred to in the note of Wharton do not sanction such a precedent. The indictment in Green’s case, 4 Strob. 128, was like the indictment in State v. Fley, 2 Brev. 388, which charged that Jenkins and Fley, with malice aforethought, &c., made an assault on David Minton; that Jenkins with a gun shot Minton, so that he died, &c.; that Eley was then and there present maliciously aiding, &c., the murder aforesaid to commit; and so the jurors say that the said Eley did feloniously, <fcc., kill and murder said Minton, &c.; and the court remarked in delivering the opinion that, though it is necessary to state in the indictment the manner of doing the injury, yet if several are present aiding in the perpetration of the act, it is not material whether it is correctly stated which of them did it. See also the precedents in 3.Chit. Crim. Law, 154-5-6.

The averment, however, of the manner in which the instrument is held by which the injury is inflicted is not material ; and if it was so according to the common law rules of criminal pleading it is cured by the sweeping provision of our statute, which declares that “ no indictment shall be deemed invalid on account of any defect or imperfection which does not tend to the prejudice of the substantial rights of 'the defendant upon the merits. (2 R. C. 1855, p. 1171, sec. 27.)

The indictment is legally sufficient to sustain a conviction, but a part of it is absurd, and such precedents ought not to bo used. The dignity of judicial proceedings requires that the forms employed in the administration of justice should not be incongruous or untruthful on their face, and the literature of the public records should be spared the reproach of unnatural statements' when averments according to the facts will answer the purpose as well.

Eor the purpose of discrediting the prosecuting witness the defendant, after proving that one Priekett was not present at the time of the difficulty, offered to prove that Priekett had been convicted before the recorder and sent to the workhouse on the testimony of Haufmeister. The evidence was properly excluded, for it is not competent to prove a conviction in that way, nor to prove what statements Haufmeister had made before the recorder, without first calling his attention on his examination to his previous statements.

The defendant proved that his general character as a peaceable man was good, but the court sustained the objection to the inquiry as to his character for industry, which was proper; because whenever evidence of character is admissible it is restricted to the trait of character which is in issue and must have reference to the nature of the charge. (3 Greenl. Ev. sec. 25.)

There is no error in the instructions given by the court, and, though the proposition contained in the first instruction asked by the defendant is undoubtedly true, that to maintain the charge against the defendant it was necessary to prove that he was aware of the felonious intent of Gaughy in making the assault, yet the principle was contained in the instruction given, in these words : “ In order to render a person an accomplice and a principal in felony he must be aiding and abetting at the fact or ready to afford assistance if necessary, and with a knowledge of the fact to be commitod; or, in other words, the aider and abettor must be present aiding and abetting to the felony, with a felonious intent.”

There was no proof to justify the suspicion that Gaughy stabbed Haufmeister in self-defence, and therefore there was no propriety in framing the instructions on that hypothesis. Witnesses testified on both sides, whose testimony was contradictory, and after the court had given the instruction that if the jury believed from the evidence that any witness or witnesses in the cause had wilfully testified falsely as to any material fact in the case, they were at liberty to disregard the whole of the testimony of such witness or witnesses, there was no error in refusing the defendant’s instruction on the same subject which was aimed directly at one of the witnesses.

All the judges concurring, the judgment will be affirmed.


author: Napton, Judge,

text:
    Wells et al., Defendants in Error, v. Thomas, Plaintiff in Error.
    1. Where one o£ several companies- engaged in transporting goods on the line of a route between two distant points receives goods from another of those companies, and, in accordance with the,usual custom in such cases and in ignorance of any special .contract made with the company first receiving the goods, pays the freight and charges demanded at the point where they are so received and transports them to their place of destination: Held, there being no arrangement or understanding between the companies with reference to “ through” transportation, that the company might retain possession of the goods until the consignee should pay its own customary charges for transportation, together with the freight and charges paid by it on its receipt of the goods, although such sum should exceed the amount for which the company that first received the goods agreed they should be transported.

      Error to St. Louis Gowt of Common Pleas.

    This was an action for .the possession of an omnibus. The cause was tried by the court" without a jury upon an agreed statement of the facts, of which the. following is the substance : Plaintiffs purchased the omnibus mentioned in the petition, of the-value of five hundred dollars, of John Stephenson, in New York, and instructed him to ship it to them at St. Louis, Missouri. Thereupon said Stephenson, for the plaintiffs, on the 24th of September, 1855rmiHNN...cmLtract. with the New York Central' Railroad Company_(being_a railroad running from New York to Buffalo, in the state of New York) to deliver said omnibus to the plaintiffs at St. Louis for the sum of $49.33. The bill of lading (which was set forth in the agreed statement) wás forwarded to plaintiffs at St. Louis. Stephenson delivered the omnibus to the New York Central Railroad Company to be transported to St. Louis, by which it was carried in the usual mode and time to Buffalo, and there delivered to the Michigan Central Railroad Company, which transported the samé to Joliet. At Joliet the omnibus was delivered to the Chicago, Alton and St. Louis Railroad Company to be transported to St. Louis. The Chicago, Alton and St. Louis Railroad Company received said omnibus in due course of business, without any notice of any special contract for its transportation, and paid to the Michigan Central Railroad Company the sum of seventy-two dollars, the amount of their bill for the freight on the omnibus from Buffalo to Joliet, and the charges they had paid on receiving the same. It is customary for one railroad company, when receiving goods from another railroad company to be carried forward by the former, to pay the freight and charges upon said goods and property up to-the point where they are so received. Said omnibus arrived in St. Louis, and was in the possession of defendant, the agent of the Chicago, Alton and St. Louis Railroad Company. The defendant notified plaintiffs of the arrival of the omnibus and requested them to call and pay freight and charges, amounting to 1102.40. The plaintiffs offered to pay $49.83, and demanded of defendant the omnibus. The defendant refused to deliver it until the freight and charges advanced to the Michigan Central Railroad Company and the freight from Joliet to St. Louis, the latter amounting at the customary rates to $30.37, should be paid. The plaintiffs refused to pay more than the amount tendered. There was nothing in the amount or character of the charges paid by the Chicago, Alton and St. Louis Railroad Company to the Michigan Central Railroad Company to excite any suspicion that the .charges were unreasonable.
    The court decided the cause for the plaintiffs. A motion for a review was made and overruled.

      N. D. & G. P. Strong, for plaintiff in error.
    I. The special contract was'improperly permitted to bind the defendant as it was made without any authority from him or the railroad under which he claims, and said railroad received the goods and transported them without notice of any such contract.
    II. By the delivery of the omnibus to the New York Central road, the plaintiffs made that road their agents, with authority to deliver to other connecting roads at the end of its route, and so on at the termination of each route ; and a delivery by each carrier in the ordinary course of business, without notice of any special contract, authorized the last carrier to whom it was delivered to pay reasonable charges and to recover them at the end of the route, together with a reasonable sum for its own service. (Story on Agency, secs. 73, 126, 127; Edwards on Bailments, secs. 449, 504, 507, 518 ; St. John v. Tan Santvoord, 6 Hill. 157 ; 18 Verm. 141; Mechs. Bank v. Champlain Trans. Co. 23 Verm. 186, 209 ; Ackley v. Kellogg, 8 Cow. 223.)
    III. A carrier has a lien for reasonable freight and charges, and may retain the goods, until they are paid, even though the party to whom the charges were advanced could not have recovered them. (Edwards on Bailments, 548; Cliitty on Carriers, 106; Angel on Carriers, secs. 356, 368, 384, 385, 386, 414; Sage v. Gittner, 11 Barb. 120; Bowman v. Hilton, 11 Ohio, 303 ; Bissell v. Price, 16 Ills. 408.)
    IV. The special contract with the New York Central road, if properly in evidence, does not vary the rights of the defendant, he having advanced reasonable charges and transported the omnibus without notice of any such contract.

      S. T. & A. D. Glover, for defendants in error.
    I. The New York Central Railroad Company contracted to transport the omnibus to St. Louis. The omnibus having come into the possession of the Chicago, Alton and St. Louis Railroad Company, the law presumes that they received it as the agents of the New York Central Railroad Company, to be transported to St. Louis on account of that line, and they can not look to plaintiffs for compensation. (Pitch v. New-bury, 1 Dougl. Mich. 1; Robinson v. Baker, 5j0ush. 146; VanBuskirk v. Perrington, 2 Hall, 561; 5 Term, 604; 4 Esp. 174; 20 Wend. 275; 22 Wend. 318; AngeT on Carriers, secs. 365-6.) A carrier can not acquire any better right to property than the party had from whom ho received it, and he is bound to see that the true owner has parted with his control over it. He must see that the person offering the goods for carriage lias the right to do so, and he can always protect himself by requiring payment in advance. (Story on Bailm. § 586.) If one ¡Shrrier has a right to receive property in transitu from another without inquiring into the ownership of it, or the agreement by which it is to be carried, he would be protected in giving it any direction. Property destined for St. Louis and given to a carrier to be delivered there, might be delivered to another and in good faith to be transported by the latter to London. A carrier is bound to take care that the person who delivers them to him has power to do so, and he must see to the character and extent of his authority. The New York Central Railroad Company bound itself to deliver the omnibus at St. Louis, and the duty to perform the contract gave th'em the implied right to use all necessary and proper means for that purpose ; and as their road did not extend beyond the limits of the state, they had the right to employ other agents, but such agents could acquire no other right touching the property than their principals had. The agency of the New York Central Railroad Company was special and only extended to the limit of causing it to be transported to St. Louis for a certain price. (See 20 Wend. 282.)
   Napton, Judge,

delivered the opinion of the court.

Upon the case agreed our opinion is that the defendant was entitled to judgment.

We do not see how the contract made with the New York company is to bind the Alton and St. Louis Railroad Company without showing some privity between these corporations .or a knowledge of the contract on the part of the Alton and St. Louis company. No such.-ta±sd±gJ^-sh.o-w-iUr--nojnis it. ^metencled that the companies at this end of the route were apprised _ of any special agreement about the__ freight. The cases of Fitch & Gilbert v. Newberry, 1 Dougl. Mich., and Robinson v. Baker, 5 Cush. 137, are not applicable. The Illinois Railroad Company received the omnibus in the usual course of trade from the Michigan company, and paid the freight due at Joliet, as the Michigan company had paid what was due at Buffalo. The omnibus was transported by the route desired and directed -by the plaintiffs and indicated by the bills of lading. These transportation companies received the omnibus from the New York Railroad Company, who were authorized to give it this destination. It is not the case of goods shipped on a different line from that directed by the owner or sent to points not authorized.

It is manifest that if we hold the carriers at this end of the route not entitled to their freight because of a contract made by the carriers at the eastern terminus, of which they had no knowledge, great injustice is done to the carriers here, and still greater injury inflicted upon consignees. The candors must protect themselves by requiring freight in advance, contrary to what has been found in this case to be the established custom.

What may be the proper construction of the bill of lading forwarded to the plaintiffs here by the New York Central Railroad Company is not material to be determined. If the meaning of it be as intended by the plaintiffs, the New York company is of course responsible ; but this is no reason why defendants should lose their lien. If any arrangement or understanding existed nmong these corporations relative to through transportation, the rule would be different.

Judge Scott concurring, the judgment is reversed ; Judge Richardson not sitting, having been of counsel.


text:
    King, Plaintiff in Error, v. Howard et al., Defendants in Error.
    1. "Where a tenant in common in lands conveys his share to one o£ his co-tenants, lie can not have the same partitioned and set apart to him for any purpose.
    2. An agreement to refer a matter in dispute to arbitrators can not bo specifically enforced.

      Error to St. Louis Land Court.

    The plaintiff, Virginia King, sets forth in her petition that she inherited from berm other Genevieve Howard an interest of one-eightli in a certain lot in the city of St. Louis ; that she was entitled to one-eiglith on the 28th of August, 1846, and the other children respectively one-eiglith ; that on said 28th of August, 1846, “ she was induced to make an arrangement with the defendant, Louis Howard, by which she conveyed to him her interest in said lot for the sum of $600, with the agreement on his part that when her said interest should be ascertained by partition it should be valued by appraisers — one to be selected by each — and on their failing to * agree that they should choose a third person, who, in connection with themselves, should appraise and estimate the value of her said ascertained interest, and if its value as ascertained should exceed the said $600, said excess should be paid by the said Louis Howard to the said plaintiff, and if it should fall short of the said $600 plaintiff was to pay him the difference ; all of which is evidenced by his agreement under seal and duly recorded, herewith filed, marked C, which is a lien or mortgage on her said interest for the faithfuljulfilment thereof. Plaintiff states that the said Louis Howard has not, nor has any one else, caused a partition to be made of said lot among the owners thereof, whereby the interest of said plaintiff'was separated and identified for the purpose aforesaid, although more than ten years have elapsed since the date of said agreement, and although the said plaintiff has frequently requested him to have a partition made for said pxirposes. Plaintiff applied to the defendant to have said partition made, which he refused to do. Plaintiff therefore prays that your honor, on a full hearing of the matters herein set forth and alleged, will grant a decree that the interest to which the plaintiff was entitled in said lot at the date of said deed and agreement, to-wit, one-eighth, be partitioned, separated and located by metes and bounds for the purpose of ascertaining its value in the manner set forth in said agreement, and' in sucli manner as shall be most equitable and just with all parties, saving and protecting the rights of the plaintiff; and that commissioners be appointed for that purpose. Plaintiff] also prays that your honor will cause to be appointed appraisers to value said interest, after it has been ascertained, in case of the refusal or delay of the said defendant Louis Howard to make a selection on his part, and all and such other relief,” &c.
    The defendants demurred to this petition. The demurrer was overruled. The defendants then answered, averring that partition had been made; that plaintiff’s interest had been set apart to Louis Howard. Evidence was introduced tending to show a verbal partition as alleged. The cause was submitted to the court without a jury. The court, at the instance of the plaintiff, gave the following instruction, or declaration of law: “ If the court find from the evidence that there has been no partition according to law of the real estate to which the plaintiff was a party, or in which she afterwards acquiéseed, then the plaintiff is entitled to recover her interest in the estate of her mother, Genevieve Brazeau, deceased, subject to' the conditions of the agreement made between herself and,, the defendant?’ The court gave the following declaration of the law at the instance of defendants : “ The court declares the law to be that if it has been established by the evidence that partition of the premises in the amended petition described was made among the heirs of Genevieve Howard (or Brazeau) plaintiff can not recover in this' action.”
    The court gave judgment for the defendants.

      Morehead and Shreve, for plaintiff in error.
    Garesché, for defendants in error.
   Richardson, Judge,

delivered the opinion of the court.

The plaintiff does not ask to recover damages for the breach of a contract, but the suit is in the nature of a proceeding in equity, in which the plaintiff seeks the specific performance of an agreement for partition of a piece of land, not as an end with the view that the interest of the respective parties may be severally enjoyed by them when set apart, but as preliminary to another purpose, and also to enforce an agreement made by the plaintiff and Louis Howard to submit a question between them to arbitration. Neither of these objects can be attained in the manner proposed by the plaintiff.

It appears that Genevieve Howard died seized of a parcel of land in block number forty-three in the city of St. Louis, which descended at her death to the plaintiff and her other children, in which the plaintiff claimed an interest of one-eiglith. On the 28th day of August, 1846, the plaintiff, in consideration of six hundred dollars, which she received, conveyed to her brother, the defendant Louis Howard, by deed duly acknowledged and recorded, all her interest in said block, and in any real estate lying east of said block and west of the Mississippi river, between Lombard and Mulberry streets extended to the river. An agreement under seal was executed by the plaintiff and Louis Howard on the same day, which recites that the plaintiff for six hundred dollars had conveyed by deed to said Howard all her interest in said block and the land east of it to the river, and that as no partition of the real estate had been made between the heirs of Genevieve Howard, the parties mutually covenanted that when partition should be made between the heirs and legal representatives of their mother, according to law, that two appraisers should be chosen, one by each party, to appraise and value the portion allotted to the plaintiff or her assigns, and if the two appraisers to be so appointed should not agree on their estimate, they were to appoint a third person to act as umpire, whose decision should be final. It was further agreed that if the portion allotted to the plaintiff should be valued at a sum less than six hundred dollars, then she should pay to Louis Howard the difference between the appraised value and that sum; but should the appraisement of the share exceed six hundred dollars, Louis Howard was to pay her the overplus.

It is manifest that the parties to this contract traded on an approximate estimate of the value of the plaintiff’s share, and contemplated another and more satisfactory valuation, to be ascertained when the property should be partitioned by legal proceedings, and the respective interests of each of the heirs set apart. They however mistook the law, for the deed conveyed the absolute title to Louis Howard of all the plaintiff’s interest, and the contemporaneous agreement was a mere personal contract, so that in any partition that could be made no portion of the land, for the purpose of being valued, or for any other purpose, could be assigned to the plaintiff, but the interest which she had inherited would necessarily be set off to Louis Howard, and would not be distinguished from any other interest he had. No such partition then as the parties had in view was practicable in a direct proceeding, and it is not perceived how it can be made now in this one. The structure of the body of the petition, as well as the prayer, shows that partition of the land was not asked for as an end, but as a means of getting at something else; and if it was otherwise proper and could be made, the court would not order it for a temporary object, merely for the purpose of laying the groundwork for another suit and to go for nothing as soon as the suit was ended.

The agreement that each of the parties should select an appraiser, to value the portion to be set off to the plaintiff can not be specifically enforced. (2 Sto. Eq. § 1457.) Lord Eldon said, in Street v. Rigby, 6 Ves. 815, that no instance is to be found of a decree for specific performance of an agreement to name arbitrators; and Mr. Justice Story, in Tobey v. The County of Bristol, 3 Sto. 800, notices the authorities, and in a lucid opinion states as his conclusion that an agreement to refer to arbitration can neither be set up as a bar to a suit at law or in equity. Nor can it be enforced in a court of equity when either party as plaintiff seeks it. Aii agreement for arbitration is, in its nature, revocable, and, though an award when made will be enforced, parties will not be compelled to submit a controversy to arbitrators, nor will they be compelled to perform an agreement for that purpose after they have made it. How could the court compel the parties to select appraisers ? and if even the parties selected them, the court could not require the appraisers to select a third person to act as umpire in the event of their disagreement; and if either party should refuse to name an appraiser, the court has no authority to appoint or substitute any other person. (Agar v. Macklew, 2 Sim. & Stuart, 418.) The plaintiff has mistaken her remedy, which, as we have seen, is not of the nature of a proceeding in equity, but must be obtained by the assignment of proper breaches of the Covenants contained in the agreement. The other judges concurring, the judgment will be affirmed.


author: Richardson, Judge, Scott, Judge.

text:
    Harrison, Appellant, v. Cachelin et al., Respondents.
    1. Instructions should not be given unless supported by the evidence.

      Appeal from Si. Louis Land Court.

      Casselberry for appellant,
    cited Harrison v. Cachelin, 23 Mo. 124; Reilly v. Chouquette, 18 Mo. 225 ; 10 Watts, 142; 4 Whart. 298; 25 Penn. 252.

      Whittelsey, for respondents,
    cited Martin v. Whittington, 4 Mo. 518; Campbell v. Hood, 6 Mo. 211; 6 Mo. 250 ; 7 Mo. 220 ; Watts v. Douglas, 10 Mo. 676 ; 19 Mo. 307 ; State v. Anderson, 19 Mo. 246 ; Menkens v. Ovenhouse, 22 Mo. 70 ; Williams v. Dongan, 20 Mo. 186; 5 Mete. 173 ; 9 Mo. 477 ; 18 Mo. 220.
   Richardson, Judge,

delivered the opinion of the court.

When this case was first before this court (23 Mo. 117) it was decided that the defendants had no title in law or equity, and on the last trial they did not attempt to set up any, but relied solely on the statute of limitations.

The court gave the following instruction at the request of the defendants : “ If the jury believe from the evidence that the defendants and those under whom they claim have had open and visible possession of the premises in dispute under a claim of title adverse to the title of the city of Carondelet and of the plaintiff for the period of twenty years next before the commencement of this suit, they will find for the defendants.” If an instruction contains a correct proposition of law, it will not be exceptionable, if there is any evidence to warrant it, no matter how conflicting or how little it may be; but there must be some evidence ; and where the whole case turns, as this did, on a single point, an instruction like the one given, without any proof to support it, is not simply obnoxious as a harmless abstraction, but is pregnant with mischief as tend-to mislead the jury, in assuming facts that did not exist. I would be opposed to disturbing this judgment if there was the least evidence on which do base the instruction; but this is not a case of conflicting testimony, or of doubt, as to the side on which it preponderated, but a total absence of any proof to give color to the hypothesis on which the instruction was framed. Not a single witness on either side, or all of them together, proved an uninterrupted possession for twenty years, and the defendants not only failed to make out their defence, but affirmatively disproved it and established by every one of the witnesses they introduced, who undertook to connect the several possessions, that there was a gap of six or eight years after 1844, during which time there was neither house nor fence nor occupation of any kind, nor any thing else to indicate the appearance of a hostile claim or possession ; and if the plaintiff during that time had been diligently seeking a law suit, he could not have found any person against whom he could have maintained an action of ejectment for this lot. A party should not suffer the penalty of losiñg his right by not suing., where there is nobody to sue,, and in this case there was a space covering several years, a part of the time necessary to make up the period of twenty years, during which the plaintiff could not have made an entry to avoid the statute because there was no one to enter upon.

It is conceded on both sides that the plaintiff has prima facie a perfect paper title and is entitled to recover the possession unless the defendants have shown a better right to it. Now if they have a title to the land by limitation or otherwise, let them keep it; but to tell the plaintiff that he has the title and that the defendants have not, and yet refuse to give him the benefit of it, is “ holding the word of promise to the ear, but breaking it to the hope.” Whatever equity it was supposed the defendants had, has been heretofore declared by this court to be insufficient to protect their possession, and it can not be worked out through the sympathies of a jury. No case was made for an instruction on the statute of limitations, and the judgment will be reversed and the cause remanded;

Judge Scott concurring; Judge Napton dissents.

Scott, Judge.

The instructions given by the court in relation to the statute of limitations seem to me to be inconsistent with each other. The instruction given for the plaintiff was a correct one, but its force was immediately impaired by that given -for the defendants. It seems to be obvious that both instructions should not have been given.


text:
    Goetz, Respondent, v. Ambs, Appellant.
    1. It is generally sufficient in pleading to state facts according to tlieir legal effect; an averment, in a petition in trespass, that the defendant beat and struck plaintiff, will be sustained by evidence showing that he was present aiding and encouraging others in so beating and striking him.
    2. To'warrant a jury in giving exemplary damages, in an action of trespass, it is not necessary to show that the defendant was prompted by ill will and hostility toward the plaintiff.
    3. If an injury to the persop be committed unintentionally and result simply from a want of care, the damages awarded should be compensatory; if it be wilful and intentional, exemplary damages may be allowed.

      4. Where in an action of trespass the defendant seeks to show that the plaintiff has no interest in the suit, that he has assigned the cause o£ action or any interest in the judgment that he expected to obtain, he must set up this matter in his answer.
    5. Verdicts of juries should not be set aside on the ground that the damages allowed are excessive, unless they are so extravagant as to bear evident marks of prejudice, passion or corruption.

      Appeal from Si. Louis Cowrt of Common Pleas.

    This was an action for an assault and battery. On the first trial of the cause the jury gave a verdict in favor of the plaintiff and assessed the damages at the sum of two thousand dollars. The supreme court granted a new trial on the ground of the excessiveness of the damages. (See Report of case, 22 Mo. 170.) On the new trial the evidence showed a permanent loss of one eye. The jury found a verdict for the plaintiff and assessed the damages at the sum of three thousand dollars.
    The court, at the instance of the plaintiff, gave the following instructions: “ 1. If the jury find for the plaintiff, they should allow such damages as will compensate him for the expenses he incurred in endeavoring to cure himself of the injury by the defendant and for his loss of time, and for any damage he may have suffered, permanent or otherwise, to him in pursuing his trade in consequence of such injury; and in addition thereto may allow such further sum, for exempla^ ry damages or smart money, as they may, under all the circumstances and facts in evidence, deem right. 2. If the jury shall believe from the evidence that the plaintiff was struck in his left eye by the defendant with the butt end of a whip which he held in his hand, they will find for the plaintiff and assess such damages as from the evidence he has sustained ; and in addition thereto may allow such further sum, for exemplary damages or smart money, as they may, under all the circumstances and facts in evidence, deem right. 3.. If the jury believe from the evidence that the defendant did commit the assault and battery complained of, then the defendant can not, under the pleadings, set up any matter in justification of the same.”

      The court, of their own motion, gave the following: “ If the jury find for the plaintiff, it is for them to determine whether they will allow exemplary damages, and if so, how much. In determining the question of exemplary damages, they should consider all the facts and circumstances connected with the inflicting of the injury, and the motives and conduct of the defendant at the time, if the injury was inflicted by Mm. 5. If the jury believe from the evidence that the blow in question was not struct by the defendant, and that he did not participate in the quarrel except for the purpose of preserving the peace or preventing a disturbance, and did not instigate or countenance the giving of the blow in question, then they should find for the defendant. 6. If there was a quarrel or general fight at the Camp Spring garden at or about the time the plaintiff was injured, and the plaintiff did not participate therein, then that fact should not be considered as mitigating the damages if the defendant intentionally struck the plaintiff in the manner charged. 7. If the jury believe from the evidence that any witness has wilfully testified falsely to any material fact, they should reject all parts of his testimony which are false, and are at liberty to reject his testimony altogether. It is the exclusive province of the jury to determine what weight should be given to the testimony of each witness.”
    The defendant asked the following instructions, which were refused: “1. If the jury should find that any other person than Ambs struck the plaintiff, by means of which striking plaintiff was injured as complained of, then they should find for the defendant, even if they should be of opinion that defendant was present countenancing such striking. 2. The jury must find for the defendant, unless they are satisfied that the defendant committed the injury complained of in person. 3. Unless the jury believe' from the evidence that defendant deliberately and maliciously struck the plaintiff with the intent to injure him, then they ought not to give exemplary damages against him. 4. In allowing smart money to plaintiff, in case the jury should find for plaintiff, the jury should consider mainly the malicious intent and motive of defendant in committing the injury complained of.”
    The court, at the instance of the defendant, gave the following instruction: “ If the jury believe that any one witness in this cáse has corruptly sworn falsely to any statement in his testimony, then the jury are bound to disregard the whole of such statement, and may discard the entire evidence oi such witness. The jury are left the exclusive judges of the credibility of witnesses, and must weigh the testimony of each witness in accordance with all the facts proved.”

      Hudson & Thomas and Reynolds, for appellant.
    I. The first and second instructions given were erroneous. They did not tell the jury what facts and circumstances would authorize them in giving smart money. The fifth instruction was also erroneous. It did not tell the jury what acts the appellant might do to prevent a disturbance or to preserve the peace. The first two .instructions asked by defendant should have been; given. The petition alleges that the appellant struck the blow, and, unless he did, the respondent could not recover. The third instruction should have been given. Exemplary damages are not allowed unless the wrong was committed deliberately and maliciously. A party may do an act intentionally in the heat of passion and there still be a total absence of deliberation or malice. (Sedgwick on Damages, § 253.) The court should have granted a new trial. The damages were excessive. (Goetz v. Ambs, 22 Mo. 170; Sedgwick, 455-9; 2 Greenl. Ev. § 253, 256-7.)

      H. N. Hart, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

The instructions given by the court, on the points they touched, contained general and correct propositions of law, and, as they did not purport to comprehend every view of the case, they were not exceptionable for omitting to cover the whole ground. The defendant could have asked instructions on any aspect of the case not embraced in those already given, and could have saved his exceptions if they had been refused; but it would be a dangerous practice for this court to establish that every judgment must be reversed, because, though each instruction is correct by itself, yet as a whole they fail to notice some legal proposition that properly arises on the evidence.

The first two instructions asked by the defendant and refused contain the proposition that the plaintiff can not recover for any injury he sustained unless the defendant personally inflicted it. These instructions are not defended on the ground that all persons who are present aiding and encouraging a trespass are not equally guilty with the one who strikes the blow; but it is insisted that the allegation in the petition must correspond with the real fact, and that the plaintiff could not recover short of proof that the defendant struck him, even though it appeared that he was present aiding and abetting another person who did strike. It is generally sufficient in pleading to state facts according- to their legal effect; as an averment that A. and B., as partners, made a note, will be sustained by proof that one of them signed it in the name of the firm. So, in an indictment for murder that A. struck the fatal blow, and B. was present aiding and abetting, will be sustained by proof that B. was the actual perpetrator of the deed, and A. was present aiding and abetting; for the injury given by one is, in judgment of law, the injury of the other. And surely greater strictness is not required in civil than in criminal pleading.

The defendant’s third and fourth instructions were also properly refused, for they give an undue prominence to the idea of deliberation and malice, which was calculated to mislead • the jury. They implied that the defendant must have been prompted by ill-will and hostility towards the plaintiff — a state of feeling which is not necessary to exist to warrant the jury in giving exemplary damages.

If an injury is unavoidable or the conduct of the defendant is without fault, no action will lie, and a trespass, to give a cause of action, must either be wilfully committed or proceed from a want of due care. The intention is immaterial if the defendant is in any manner to blame, and it only becomes material in considering the question of exemplary damages. If the injury is not intentional, but results simply from a want of propep care, nothing more should be recovered than will compensate for the actual damage ; but if the act is wilful or intentional, then “ the idea of compensation is abandoned, and that of punishment is introduced.” It is said generally that malice must exist'to entitle the plaintiff to any thing more than reparation for the injury; but it will be found that the word malice is always used, in such connections, not in its common acceptation of ill-will against a person, but in its legal sense, wilfulness — a wrongful act, done intentionally, without just cause.” (United States v. Taylor, 2 Sum. 586.) The term malice .imports, according to its legal signification, nothing more than that the act is wilful or intentional; and when used to qualify the character of a trespass, it is only employed to distinguish it from that class of injuries which one person may inflict upon another without the intention to^do harm, but for which he is responsible because the act is not, unavoidable.

The defendant called the plaintiff to the stand as a witness and asked these questions: “ Did you, since the institution of this suit, at any time assign any interest in this action to any person ; if so, to whom, and what interest ? Have you made any agreement with any person or persons, since the institution of this suit, by which such other person or persons are to receive any share or benefit of any judgment to be rendered ?” The plaintiff’s counsel objected to the questions, and the objection being sustained by the court the plaintiff did not answer them. The defendant’s answer did not set up any defence on the ground that the plaintiff had no interest in the suit, or that he had assigned the cause of action or any interest in the judgment he expected to obtain, and the testimony sought to be elicited by the question could not have furnished the jury with any proper assistance in estimating the plaintiff’s damages.

The judgment on the first verdict in this case was reversed because the damages allowed by the jury were thought to be excessive. (See 22 Mo. 170.) On the last trial the verdict was for a greater amount than on the first, and it is now argued that the objection which was fatal to the first judgment applies with greater force to this one. But, in our opinion, the fact that one judgment has been reversed on account of excessiveness of the damages, is the best reason why the second should not be reversed for a like cause. Whilst the estimate of damages in actions of this kind is the proper office of the jury, the court thought that the evidence did not justify so large a verdict, and that justice would be promoted by giving the defendant a new trial before another jury. A second trial has taken place and a larger verdict has been returned, without any imputation on the conduct of the jury, and something is due to the opinion of two juries. Another interference by the court would not only be an unwise exercise of its power, but would seem to be a usurpation of the province of the jury; and we have no assurance that if another new trial were granted the defendant would be more fortunate than he has been. The general rule on this subject is well stated by Mr. Sedgwick, in his work on Damages, (p. 466,) “ That, although the court are entirely satisfied that the damages are excessive and altogether beyond a compensation for the actual loss sustained, they will not, on motion for a new trial, interfere with the finding, unless the verdict is so extravagant as to bear evident marks of prejudice, passion or corruption.”

All the judges concurring, the judgment will be affirmed.


text:
    Charleson et al., Appellants, v. Hunt, Interpleader, Respondent.
    1. The fact that a defendant is present in court, during the trial of the cause, in obedience to a subpcena, ready to testify when called, will not render it improper to receive in evidence a deposition of said defendant taken in another cause in which he was a party; though not admissible as a deposition, it may, being signed by him, be received as a written admission.

      Appeal from St. Louis Circuit Cowrt.

    Plaintiffs commenced a suit by attachment against Edward St. Michel. Eraneis A. Hunt interpleaded, claiming the property attached by virtue of a deed of assignment executed by said St. Michel for the benefit of his creditors. Said Hunt had likewise interpleaded in various other attachment suits commenced by parties other than the plaintiffs in this suit. To prove fraud in the assignment and a knowledge of it on the part of the interpleader, the plaintiffs offered in evidence a deposition of said interpleader taken in one of the other attachment suits in which he had interpleaded. The court excluded it. ' The plaintiff had subpoenaed said Hunt, and he was present in court ready to testify when called. Plaintiffs also called as a witness the notary who took the deposition, and offered to prove by him the declarations and statements of said Hunt contained in his deposition, and proposed that he should read the deposition to refresh his memory.

      A. J. P. Garesché, for appellants.
    I. The deposition was improperly excluded. (Kritzer v. Smith, 21 Mo. 296 ; Murray v. Oliver, 18 Mo. 405.)

      Polk and Henry N. Hart, for respondent.
    I. The deposition was properly excluded. Hunt was in court ready to testify. (See R. 0. 1855, p. 658, § 28.)
   Richardson, Judge,

delivered the opinion of the court..

On the trial of the issue made by the interplea, the plaintiffs offered in evidence the' deposition of Hunt, which had been previously taken in a suit betwefen Lattimer et al., plaintiffs, and St. Michel, defendant, which was excluded because Hunt was in court in obedience to a subpoena, ready to be called as a witness. We assume that Hunt’s hand-writing was admitted or proved, for. no objection was made on the ground that he had not subscribed the deposition. The only point in this case was decided in Kritzer v. Smith, 21 Mo. 296. The paper was not offered as a deposition bnt as written admissions by the interpleader; and the statute which gives the right to examine the adverse party as a witness was not designed to exclude the ordinary means of proof, and it is competent to prove as admissions the oral or written statements of a party to the suit, though he might be called as a witness.

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