text:
    Watson, Appellant, v. Watson et al., Respondents.
    1. To entitle a widow to dower under the first section of the dower act (R. C. 1855, p. 668), it is not necessary that she should elect so to take. No election to take dower under the first section of the act can, as an election, take away her right to elect to bo endowed under the eleventh section of said act. To overthrow this right, there must be a binding contract or such facts and circumstances as will work an estoppel in pais.

      2. The institution of a suit by a widow to recover dower according to the first section of the dower act,-and the declaration in the petition in such suit, which is signed and sworn to by her, that she thereby elects to take as her dower the third part of the lands of the deceased husband, will not take away her right to elect, within eighteen months after the grant of letters testamentary or of administration, to take dower under the eleventh section of said dower act.

      Appeal from St. Louis Land Court.

    Meany, for appellant.
    I. The plaintiff was not estopped.

      Gantt, for respondents.
    The widow, in tlie most solemn and authentic manner, elected to have dower according to the provisions of the first section. She has no claim to the benefit of the eleventh section. She can not allege ignorance of law. She made her election between the provisions of the first and eleventh sections. No notice is required to be given to the widow to put her upon her election. She was sui juris, free from all disability. There is no limit whatever to the modes in which she may renounce the benefits of section eleven — express renunciation, nonclaim, and direct declaration of preference for and demand to have the alternative. An election can be exercised only once. When the party has chosen, his right is exhausted. (Bouvier, Law Die. tit. Election; Co. Litt. 146,136.)
   Scott, Judge,

delivered the opinion of the court.

On the 26th day of June, 1856, letters of administration on the estate of Ringrose J. Watson were issued. On the 18th September, 1857, Frances Watson his widow, under the eleventh section of the act concerning dower, approved November 29,1855, elected to take a child’s part of the real estate, whereof her husband died seized or possessed, in lieu of the dower or provision made for widows by the first section of that act. This election was made in conformity to the requirements of the statute. Prior, however, to its being made, the widow had brought suit to recover her dower, in which she claimed it under the first section of the foregoing recited act. Her petition set out, among other matters, that “ she was entitled to her dower interest, as widow, in said tracts of land; said dower interest being an undivided one-third interest therein for the term of her natural life, the same being the kind of dower which she hereby elects to take in the land.” This suit was brought to the March term, 1857; and afterwards, she having in the mean time made the election above mentioned under the eleventh section of the act concerning dower, the plaintiff, at the October term, 1857, filed an amended petition in which she claimed dower according to said election, alleging that at the time of filing her original petition she was ignorant of her true rights and interests in the premises, and had been misinformed as to them by an attorney at law whom she consulted. The de-fence was that the widow was concluded by the election she had made in her original petition, and that a subsequent election was of no effect, she having already made one. Of this opinion was the court, and gave judgment accordingly.

We do not well see on what principle the judgment in this case is based. It is obvious that, after an intelligent and free election has been made in pursuance to the forms of law, a widow will be bound by it, and will not be permitted to make another; but, in order to constitute an election, it must be made substantially in the manner prescribed by law. If it is not made in the way required, it is no election. If the widow intended to take under the first section of the act con- . cerning dower, no election was necessary. In the absence of an election to take under the eleventh section of the act, the law detennined what her dower should be independently of any election. An election to take under the first section amounted to nothing. It would not prevent her taking af-terwards under the eleventh section. If a widow should declare that she would have no dower, that her choice was to take none, would such a declaration prevent her afterwards recovering her dower ? If she should renounce in the most solemn form the provision made for her by the eleventh section, though not in the manner required by law, what would prevent her afterwards, within the fifteen months, from electing to take it ? Nothing but a binding contract or an estop-pel in pais could restrain her from making her claim. The law allowed the widow fifteen months, during which she might choose whether she would take dower under the eleventh section. If she intended to take under the first section, no election being necessary to obtain that, it is obvious that any declarations she might make, how solemn soever they might be, that she would take under the first section, would not prevent her claiming her dower under the eleventh section, if an election to do so was made within the fifteen months allowed for that purpose. The declarations, in order to have that effect, must have been such as would constitute an estoppel in pais. It is not necessary to determine what would have [been] the effect of a judgment in a suit for dower under the first section.

But take the law as the defendants suppose it is, that an election to take under the first .section of the act concludes the dowress, and that she will not be permitted to take after wards any other dower, yet is there here any election made in conformity to the statute ? The eleventh section of the dower act provides that when the husband shall die leaving a child or children or other descendants, the widow may, in lieu of dower of one-third part of all lands whereof her husband died or shall die seized of an estate of inheritance, to hold and enjoy during her natural life, elect to be endowed absolutely in a share of such lands equal to a share of a child of such deceased husband. The twelfth section of the act provides that such election shall be made.by declaration in writing, acknowledged-before some officer. authorized to take the acknowledgment of deeds, and filed for record in the office of the recorder of the county in which letters testamentary or of administration shall be granted, within fifteen months after the grant of the same; otherwise she shall be endowed under the provisions of the preceding sections of this act. In a previous case during the present term, it was held that an election under the statute, in order to be binding, must conform to the substantial requirements of the law. (Welch et al. v. Anderson et al. 28 Mo. 293.) A petition filed in the land court in an action at law, though subscribed and sworn to, is a thing so different from an instrument to be executed, acknowledged and filed for record in the recorder’s office like a deed, that it can scarcely be necessary to make observations pointing out their dissimilarity. We can not see any show of resemblance between them, nor any ground whatever for maintaining that it is such an election as is contemplated by law. Reversed and remanded.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Miller, Respondent, v. Mitchell et al., Appellants.
    1. A. delivered to B. 300 barrels of cement on storage. B. gave to A. a receipt acknowledging the delivery of said cement on storage for C. and stating that it was to be delivered upon return of said receipt endorsed by C. This receipt A. delivered to C., and C. gave to A. an instrument in writing stating that he received and held it as security for the payment of a promissory note drawn in his favor by A. He also thereby engaged to deliver said receipt up to A. or his order upon payment of said note. D. instituted a suit by attachment against A. and summoned C. as garnishee. After-wards C. instituted a suit against B. to recover the value of the cement which B. had refused to deliver to C. on the presentation of the above receipt. After the institution of this suit against B. but before C. had filed his answer to the interrogatories in the attachment suit, A. paid to C. the promissory note for which the warehouse receipt above mentioned was held as a security, and A. gave to B. the instrument in writing above mentioned signed by C., with an order endorsed thereon by A. for the delivery to B. of the receipt given by B. C. answered the interrogatories in the attachment suit, setting forth the facts above stated, the institution of the suit against B., and the payment of the promissory note by A. He further stated in his answer that whatever judgment he should obtain against B. would be the amount in his hands belonging to A. Judgment was rendered in the attachment suit against C., the garnishee. Held, that, as C. held the cement merely by way of security, and the debt for which it was so held had been paid, C. was not entitled to recover in the suit against B. more than the costs of suit.

      Appeal from St. Louis Gowrt of Common Pleas.

    The facts sufficiently appear in the ojiinion of the court.

      B. A. Hill and Comfort Sp Manter, for appellants.
    I. When Miller recovered the judgment in this case he had no interest whatever in the cement or the receipt. When the suit was brought he had only a lien on the cement for four hundred dollars. When the note was paid, his interest ceased. Miller never could be regarded as holding the eement for the use of Daniels. Defendants held it in trust to satisfy Miller’s note, and, as to the balance remaining after the payment of the note, for the use of Daniels. The judgment against Miller upon the garnishment was clearly erroneous. If Brady & Bro. claimed that Daniels was interested in the cement, they should have attached it in defendants’ hands subject to their charges and the lien of Miller. Miller was not liable to Daniels, the debtor of Brady & Bro., for any debt. (3 Porter, 105; 5 Ala. 403 ; 13 Mete. 332 ; Drake on Attachment, § 545.)

      TI. IV. Hart, for respondent.
    I. The garnishment was sufficient to hold the cement in the hands of Miller, after satisfying the debt due by Daniels to Miller.
   Scott, Judge,

delivered the opinion of the court.

The facts and dates in this case are a little complicated, but when understood will, we are inclined to the opinion, not entitle the plaintiff to recover. This suit was begun on the 12th of September, 1856, and the petition substantially sets forth that on the 8th of August, 1855, A. Daniels delivered to the defendants to be stored for and on account of the plaintiff three hundred barrels of cement; that on the delivery of the cement the defendants, by their agent W. Harlow, gave their receipt whereby they agreed to deliver up the cement on the return of the receipt endorsed by the plaintiff; that in May, 1856, the plaintiff tendered the receipt endorsed by him, but the defendants failed to deliver the cement, which was worth seven hundred and fifty dollars. The answer of the defendants admitted the delivery of the cement and the giving of the receipt. It averred that on the day the receipt was given the plaintiff signed a writing, whereby he acknowledged to have received said receipt given by the defendants to Daniels, and that he held the same as security for the payment of a promissory note for four hundred dollars, drawn by Daniels, and which he promised to redeliver to Daniels upon the payment of the said note; that the receipt was delivered as security for the payment of said note, and that the plaintiff had no other interest in it; that, since the bringing of this suit and on or about the 7th of November, 1856, the said Daniels paid said note, and then endorsed to the defendants the writing of the plaintiff whereby he acknowledged that he held the receipt for the lime as collateral security.

On the trial, which was by the court, the plaintiff gave in evidence the receipt for the cement described in the pleadings ; also the record, which was excepted to, of a suit in attachment begun by Brady &■ Brady against Daniels, in which the plaintiff Miller was summoned as a garnishee on the 26th of May, 1856. Miller answered the interrogatories filed in the said suit, to the effect, that at the time he was garnished, Daniels was indebted to him in the sum of four hundred dollars, and as collateral security for the payment of the same Daniels placed with Mitchell, Rammelsberg & Co. three hundred bushels of cement on his account and subject to his order, for which they executed to him their receipt for the same; that before he was garnished he instituted suit (meaning this suit) for the recovery of the value of said lime, in the St. Louis court of common pleas against the said Mitchell, Rammelsberg & Co.; that said Daniels did after the said suit against Mitchell, Rammelsberg & Co. and the said garnishment pay him what he owed him. The answer then concludes in these words: “I therefore answer that whatever judgment I shall have and obtain against the said Mitchell, Rammelsberg & Go. will be the amount in my hands belonging to said Daniels. Outside of which I have no other property, goods, chattels, effects and credits belonging to the said Daniels, nor in any other manner than as aforesaid indebted unto him.” This answer was made 22d December, 1857. In May, 1857, final judgment was taken in the attachment suit against Daniels, the defendant, for $582.20, and afterwards, on the 10th of Feb’y, 1858, judgment for $658.30 was ordered against the garnishee Miller in this suit. It was admitted that about November 7, 1856, Daniels paid Miller the promissory note. Miller’s acknowledgment in writing that he held the receipt for the cement as collateral security was given in evidence by the defendants Mitchell, Eammels-berg & Co., with an order endorsed thereon by Daniels to deliver to them the said receipt. Harlow, a witness, testified that at the time Miller was garnished he said that he did not know that he could give up the receipt, as he had been summoned as garnishee in the suit of Brady & Brady v. Daniels, and did not know but that he might be held by the garnishment. The court having refused the instructions asked by the defendants, gave judgment against them.

Take this case in the most unfavorable light for the defendants that the legal title to the cement was in the plaintiff, and that at the time of the garnishment the defendants had no right or property in it; what then would have been the rights and duty of the plaintiffs? The possession of the cement was not in the plaintiff, nor was it understood that it should be until default was made in the payment of the debt due to him by Daniels. The fact that the plaintiff was garnished did not oblige him to institute a suit to recover the cement. There is no law imposing this burden on a garnishee. This suit had not its origin in the belief that there was any such obligation resting upon the plaintiff. So far from it, it was instituted before he was garnished. The petition in the case shows this and the object of the suit. Whether he was garnished or not, the only interest he had in the cement amounted only to as much as would satisfy his lien or mortgage. As this mortgage was satisfied he would only have been entitled to a judgment for costs. As the cement was not in the possession of the plaintiff, if there was an interest remaining in Daniels after the lien was satisfied subject to attachment, it should have been attached in the hands of those who held it. The possession not being in the plaintiff when he answered, he should have surrendered the receipt, as his debt had been paid and he had no other interest in it, and the right to the cement would have been contested in an action to which the defendants would have been parties. The twenty-eighth and thirty-fifth sections of the attachment law authorized this, if they did not require it. He ought not to have made a defence for others when he knew nothing about their rights. He had no interest in the cement when he made his answer to the interrogatories, and should have retired from the controversy. He could not compromit the rights of the defendants by undertaking to make a defence for them. Although the writing signed by the plaintiff evidencing the mortgage or lien on the cement was not endorsed to the defendants with the order for the receipt until after the garnishment was served, yet, as the endorsement was made as soon as the plaintiff’s debt was paid and as soon as there was a right to demand the receipt, it may well have been that the defendants’ right to the cement accrued long, long before, subject to ' the plaintiff’s lien. Indeed the fact was so stated in the first answer of the defendants, but omitted in the last, they not recollecting that, by the present practice act, when an amended pleading is filed, it must contain in one entire pleading all the matter of all the previous pleadings. (R. C. 1855, p. 1255, § 16.)

If, after the plaintiff was garnished, the property, not being in his possession, was made away with, he would not have been bound for it, nor would the law require him to bring suit. If it was made way with before the garnishment, all that was necessary to be done was to have delivered up the receipt at the time of the answering. If the cement had been in the possession of the plaintiff when he was garnished, he would have been bound to have held it as any other garnishee. But he might have given up the property to satisfy the judgment in the attachment suit against the defendant and thereby prevented any judgment against him. If the plaintiff had endorsed the receipt and surrendered it into the custody of the law, as he ought to have done, his debt being satisfied, could there have been a judgment against him personally ? This might have been done under the twenty-eighth and thirty-fifth sections of the attachment law. By voluntarily submitting to a personal judgment against himself, he can not expect that the defendants should be deprived of their rights unheard and without an opportunity to defend them. They were not parties to the attachment suit, and could make no defence. They had no opportunity of showing that their right to the cement accrued long before there was any garnishment, as stated in their first answer.

This is not like the case where a debtor is garnished who discloses all the facts in relation to the debt wiito®^^!%w-ledge up to the time of answering, and is pay it to the creditor in the attachment st not be compelled to pay it again, and tli him in the attachment suit is conclusive i£ there is no judgment against a garnishee^ has satisfied and his original creditor seekin| to pay it a second time. But a garnishee hasTBB^Sessarily and without authority submitted to make an answer in an attachment and suffered a judgment to go against him, and is now prosecuting this suit in order to indemnify himself against the judgment, which by his own conduct' he has caused to be rendered against him, and would make that judgment binding against a party, who may have a valid defence to the action in which it was rendered, and who has had no opportunity to make that defence.

It is singular how this and the attachment suit are made to^move in a circle. In the attachment suit, the plaintiff in his answer says he will owe Daniels what he shall recover in this suit. In this suit he recovers what was recovered against him in the attachment suit. As the plaintiff at the time of his answer in garnishment had no interest in _the property, he should have surrendered up the receipt and not have suffered judgment to go against him, and his doing this-did not make the proceedings in that case evidence in this against the defendants.

Judgment therefore will be reversed and the cause remanded.

The other judges concur.


text:
    Rainey, Appellant, v. Smizer & Grimm, Respondents.
    1. In a suit to recover damages for the breach of a written contract entered into with two persons, both must join as parties plaintiff. The fifth section of the second article of the practice act is inapplicable to such a case. (R. C. 1855, p. 1218.)

      Appeal from St. Louis Law Commissioner'1 s Court.

    George Smizer entered into a contract with James 0. Rai-ney and Jacob Grimm, of which the following are the substantial provisions: “Whereas Joseph Probeck contracted to do certain mill-wrighting for the undersigned, George Smizer, and whereas he, the said Joseph Probeck, has failed, leaving the work unfinished, &c., we, James 0. Rainey and Jacob Grimm, agree and by these presents bind and oblige ourselves to do all the unfinished mill-wrighting on said min and distillery, to have all things pertaining thereto, of the work now unfinished, in complete running order, &c., &c., for which the said Smizer is to pay to the said Rainey and Grimm the sum of $270, also $105 due the said Rainey for mill-writing done for Joseph Probeck on said mill, which sum the said Smizer assumes the immediate payment of. * * * It is understood that the said Smizer is to furnish all the material for said work, and he (the said Smizer) is to retain fifty per cent, of said payment, as per contract, as security for completion of said work, and that he (the said Smizer) agrees to pay the additional amount of fifty per cent., if the amount due is not paid upon completion of said work.”
    The present suit is brought by Rainey alone to recover the sum of one hundred and five dollars, alleged to be due the .plaintiff under the contract, and the further sum of forty-five dollars, alleged to be one-half the value of the work done under the contract. Grimm, was made a defendant for the reason, as stated in the petition, that he had refused to become a party plaintiff and had confederated with plaintiff to hinder and delay plaintiff from recovering his demand.

      The court instructed the jury that the plaintiff was not entitled to recover.

      G. C. Simmons, for appellant.

      G. G. Mauro and Gardner, for respondents.
   Scott, Judge,

delivered the opinion of the court.

If it is conceded that by the contract between the parties Smizer was bound to pay the plaintiff, immediately upon the commencement of the work the sum of one hundred and five dollars, the amount due the plaintiff for services performed in building the mill under a contract with Probeck, yet that sum constituted but a part of the consideration of the contract. The refusal of Smizer to comply with his contract with the plaintiff and Grimm did not give a right to them to sue and recover the price of the work as though it had been actually done. This is not like the case where a servant or agent is employed for a stated period and is afterwards wrongfully turned away. The contractors were entitled to the damages they could show they had sustained by reason of the defendant Smizer’s having prevented the performance of the contract on their part. The one hundred and five dollars was a part of the consideration, and no reason is seen why it should be recovered more than any other portion of it. It can make no difference that the sum was originally due to the plaintiff from another person for work done on the same mill.

If Smizer has violated his contract in preventing the plaintiffs from doing the work they had undertaken, he is liable to an action; but that action could only be brought in the joint names of Rainy and Grimm, the contractors. That provision of the practice act, which allows a party to be made a defendant when he will not join as a plaintiff, has nothing to do with this question. That was a rule of equity practice which was necessarily incorporated into a system whieh abolished all distinction of actions. In adopting it, it was not designed that it should have any operation but in cases where it was applicable under the former system of practice. It was never intended that it should affect the rights of parties arising out of written contracts. Nothing is better settled than the l'ule that on an undertaking to two, both must join in an action on it; otherwise there is no cause of action. It is a part of the contract that both shall sue, otherwise no action shall be brought. If one will say that he has no right of action and will not sue, why should he not have as much weight as the other who says there is a cause of action ? But if one sues and the other will not, what shall be recovered, the whole or only half of the demand ? Is the contract to be divided? Shall one recover the half at one-time and in one action, and the other a half at another time in a separate action ? Suppose that one sues, and the other will not join because he is waiting for evidence which he knows can not be had in time for the trial, and is defeated, will the other lose his remedy ? If one sues and recovers and the other is defeated, what an anomaly will be presented! A judgment for one plaintiff on a contract and; a judgment against the other; which of the two judgments will prevail, or will both stand ? These are some of the difficulties that must be encountered in maintaining that one of several ob-ligees may maintain an action upon the obligation. This point was decided in the case of Cable v. Clarke, 21 Mo. 223.

The judgment will be affirmed;

the other judges concur.


text:
    Russell, Respondent, v. Lynch, Appellant.
    1. A slave was placed in a private jail-yard for safe keeping. Tlie bailor at the time knew, through, occasional visits to the yard, that a negro boy watched at the door of the enclosure and opened the same for purposes of ingress and egress. Held, that this fact would not, in an action to recover damages for the escape of the slave through negligence on the part of the jailor, prevent the bailor from complaining of the trust reposed in the negro boy as an act of negligence.

      Error to St. Louis Court of Common Pleas.

      S. T. 8f A. B. Glover, for appellant,
    cited Story on Bailment, § 74 ; 13 Ala. 558 ; 38 Maine, 55.

      Shepley, for respondent.
   Scott, Judge,

delivered tlie opinion of tlie court.

The only point made by the defendant in this court is the refusal of the court below to give the following instruction: “ If the plaintiff knew before or at the time of placing the slave mentioned in the petition that a negro boy belonging to the defendant watched at the outer door of the defendant’s enclosure in which the said negro was placed and opened the same for the purposes of ingress and egress, she can not now complain of such trust to the negro boy as an act of negligence on the part of the defendant.”

The principle stated in Story on Bailments, § 74, is cited by the defendant to show that the court below erred in refusing the foregoing instruction. The principle is, that if a depositor agree that the goods may be kept in a particular place, as on a ship’s deck, or in a ship’s cabin, he can not afterwards object that the place was not a safe one, for his assent amounts either to a qualification of the contract for safe custody, or to an agreement that for all the purposes of the deposit the place shall be deemed sufficiently safe. The case of Hatchett v. Gibson, 13 Ala. 588, cited by the defendant, determined that if, after a contract to store cotton in a fire-proof warehouse, the owner of the cotton discharges the bailee from the obligation of completing such a warehouse, and consents that his cotton may be stored in a house which is not fire-proof, such consent can not be withdrawn after a loss has occurred. The case of Knowles v. The Atlantic & St. Lawrence R. R. Co., 38 Maine, 55, holds, that when the bailor or depositor not only knows the general character and habits of the bailee, but the place where and the manner in which the goods deposited are to be kept by him, he must be presumed to assent in advance that his goods shall thus be treated, and if under such circumstances they are damaged or lost, it is by his own fault or folly. Now the principle of these cases is not applicable to the circumstances of that under consideration. There is nothing in it which shows that the plaintiff consented to any relaxation of the care and diligence necessary for the safe keeping of her slave. Nobody would have inferred from the casual circumstance that a negro boy opened the gate of the prison-yard on two or three occasions, when it was visited by the plaintiff’s agent, that the boy was the keeper of the prison and had the care of the slaves committed to it. So slight an occurrence, one which is so little calculated to attract attention, can never be the foundation for an assent on the part of the owner of the slave that such boy should be the keeper of the prison during the confinement of her slave.

« Judge Napton concurring, judgment affirmed, Judge Bichardson not sitting.


text:
    The State, to use of Bank of Missouri, Respondent, v. Sanger, Appellant.
    1. When the record proper of a cause shows that a demurrer to a petition has been regularly heard, considered and overruled, the objection will not be entertained in the supreme court that the court overruled the demurrer without hearing counsel.

      Appeal from St. Louis Circuit Cou/rt.

      Me Clellan, Moody Sf Hittyer, for appellant.

      Burnes, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The ground on which the defendant seeks a reversal of the judgment of the court below finds no support in fact on the record. So far from it, the record contradicts the fact on which the defendant would reverse the judgment. The defendant complains that the court disregarded his demurrer without hearing counsel, when it was regularly on file when the judgment was rendered. The record shows that the demurrer was regularly heard and considered and overruled, and thereupon judgment was entered as for want of an answer. This, to be sure, was not the proper entry, for the judgment should have been entered upon the demurrer upon its being overruled. The entry should have been, “ therefore it is considered by the court that the plaintiff have and recover,” &g. This, however, is not such an error as would warrant a reversal. Upon the demurrer being overruled, the defendant was by statute, as' a matter of course, entitled to plead. But it does not appear that he claims this right, but judgment went against him, and afterwards he made a motion for leave to plead without any ■ affidavit of merits or showing any reason why the judgment should be set aside and leave given to plead.

When a judgment is once regularly entered, a court will not set it aside and let in a defence but upon sufficient cause being shown. The motion set forth no reason why the judgment should be set aside, because the reasons contained in it stood contradicted by the record proper. What is in the record proper can never be contradicted by any thing contained in the bill of exceptions. If an entry in the record is false or incorrect, it should be amended when it can lawfully be done; but if a false entry is not thus obviated, it can not be contradicted, for a record imports absolute verity. (Weber v. Schmeisser, 7 Mo. 600.)

The only point properly raised by the record is whether the petition was sufficient to maintain an action. No defects have been pointed out, and, upon examining it, none occur to us.

The other judges concur.

Affirmed.'


text:
    Karr et al., Respondent, v. Jackson, Appellant.
    1. The mode of authenticating the laws and records of the different states prescribed by the laws of the United States, is not exclusive of the common law modes of proving the same, thus, where the general banking law of a sister state requires articles of association entered into in pursuance thereof to be recorded and makes a duly certified copy of the record evidence, a sworn copy of such record is admissible in the courts of this state.

      Appeal from St. Louis Court of Common Pleas.

    This was an action on a promissory note executed by defendant in favor of the Bank of Belleville. The note was assigned to the plaintiffs. The answer put in issue the establishment of the Bank of Belleville under the laws of Illinois, and further set up that the note was without consideration and was procured by fraudulent representations. The plaintiffs gave in evidence the general banking-law of Illinois approved February, 15,1851. (See Sess. Acts, Ill., 1851, p. 163; Statutes of Ill. 1858, p. 111.) Plaintiffs also offered in evidence the deposition of F. Karsch, who testified that he was deputy recorder in St. Clair county, Illinois; that the copy of the articles of association of the Bank of Belleville, which was annexed to his deposition as an exhibit, was a correct copy of the record in the recorder’s office of the said articles ; that the original articles had been taken away from the recorder’s office after being recorded. This exhibit purported to be the certificate or articles of association establishing the Bank of Belleville under the law of Illinois above referred to, and to have been acknowledged, &c. To this exhibit there were two certificates annexed. William S. Thomas, clerk of the circuit court of St. Clair county, Illinois, and ex' officio recorder of deeds for said county, certified, under the seal of said court, that said exhibit was a true and correct copy of the original on record in his office, in book No. 3, page 422. The presiding judge of the St. Clair circuit court certified as follows: “ That the foregoing attestation of Wm. L. Thomas, clerk, by Ferd. Karsch, deputy, is in due form of law.” The defendant objected to the reading of said certificate or articles of association annexed to the deposition of Karsch on the following grounds: first, because the certificate of the judge thereto appended did not state that the attestation of the clerk and ex officio recorder was by the proper officer, and because no certificate was appended that the said judge was duly commissioned and qualified; secondly, that it was not admissible as an examined or sworn copy ; that it did not purport to be a copy of the original; nor did it appear that the witness had compared with it the original, or in whose custody the book or record was from which said exhibit was made. The court admitted said articles of association in evidence.

      Krwm, 8f Harding, for appellant.
    I. The court erred in admitting the copy of the articles of association establishing the Bank of Belleville. The writing was not certified in conformity with the act of Congress concerning the authentication of records. (4 Mo. 371.) It was not admissible as a sworn copy. It was a copy of a copy. The witness did not and could not state that it was a copy of the original.
    II. There was no consideration for the note. The subscription of the defendant amounted to nothing, for all the stock had been already taken by Bogy, Miltenberger & Poulterer.
    Gantt, for respondent.
    I. The incorporation of the Bank of Belleville was duly proven.
    II. There was a sufficient consideration for the note.
   Scott, Judge,

delivered the opinion of the court.

The principal question in this case is whether the certified copy of the record of the association of persons, for the purpose of establishing the Bank of Belleville in the state of Illinois, under the general banking law of that state passed on the 15th February, 1851, was properly admitted in evidence. The copy, besides an authentication under the laws of the United States, was sworn to be a true one taken from the record in Illinois. The law required the certificate of association to be recorded in the office of the recorder of the county where any office of such association should be established, and a copy of such certificate was made evidence for or against whom any such evidence may be necessary.

Admitting that the certificate was not so authenticated under the laws of the United States as to be read in evidence, yet it is well settled that the mode of authenticating the laws and records of the different states prescribed by the laws of the United States in pursuance to the federal constitution, so as to make them evidence in the courts of the different states, is not exclusive ; that is, the laws of Congress did not intend to exclude the common law methods of proving such documents. (Kean v. Rice, 12 Serg. & Raw. 203 ; Cowen & Hill’s notes, 1125.) A foreign judgment may be proved by a sworn copy. (Church v. Hubbart, 2 Cranch, 187 ; 6 Wend. 475.) If a foreign judgment may be proved by a sworn copy, no reason is seen why any other foreign records may not be proved in the same manner. The law of Illinois required the certificate of association to be recorded; in fact made it a record and a copy of that record evidence. There is nothing in our laws which opposes the introduction of such evidence. If the record had been authenticated in pursuance to the laws of the United States, it is not denied but that it might have been read; it being then a record which might have been so authenticated as to be read under the laws of the United States, it was such a record as might have been proved according to the course of the common law, and being so proved it was admissible in evidence. The certificate was proved to be a sworn copy of the record, and the record being in itself full and primary evidence, there is no weight in the objection that the copy used as evidence was not a copy of the original. Indeed it is not seen on what ground the copy would have been primary evidence, had it been proved to have been a copy merely of the original, the original being a private instrument.

The evidence in the case clearly establishes the consideration of the note sued on. The defendant might at any time have had a certificate of the stock subscribed for, had he applied for it. The note was given in payment of a subscription for stock.

Judgment affirmed;

the other judges concur.


author: Napton, Judge,

text:
    Bohn, Respondent, v. Devlin, Appellant.
    1. After a defendant in an action before a justice of the peace appears and consents to a continuance, it is too late to object to the jurisdiction of the justice on the ground that the defendant did not reside in the township in which the suit is brought.
    2. A notice to take depositions that is unsigned is insufficient; depositions taken upon such a notice, the opposite party not attending, either in person or by attorney, at the time and place specified in the notice, may be suppressed.

      Appeal from St. Louis Law Commissioner’s Court.

      C. C. Simmons, for appellant.

      A. M. Sf S. H. Gardner, for respondent.
   Napton, Judge,

delivered the opinion of the court.

The defendant in this case did not reside in the township where the suit was brought, and the proceeding, being in this respect irregular, could no doubt have been set aside had the proper steps been taken in time. But the defendant appeared and consented to a continuance. As the justice had undoubted jurisdiction over the subject matter, and the appearance and consent of the defendant gave jurisdiction of the person, the defects and irregularity in the process must be considered as waived. (Davis v. Wood, 7 Mo.-; Myers v. Woolfolk, 3 Mo. 246 ; Busnell and others v. Lynch, 3 Mo. 261; Malone v. Clark, 2 Hill, 657.)

The notice to take depositions was insufficient, as it was not signed. As it bad no signature, and the plaintiff to whom it was addressed did not attend at the time and place specified in the notice, either in person or by attorney, the deposition was, in our opinion, properly suppressed.

The other judges concurring, judgment affirmed.


author: RichaRdson, Judge,

text:
    Conran, Respondent, v. Sellew et al., Appellants.
    1. The issues of fact in an action brought to obtain the surrender and cancellation of a promissory note must be tried by the court, unless the court takes the opinion of a jury upon some specific question of fact involved therein, by an issue made up for that purpose. (K. C. 1855, p. 1261, § 13.)
    2. Where the trial must be by the court, instructions or declarations of law-in the form of instructions are not required, and if given will not be reviewed or noticed by the supreme court.

      Appeal from St. Louis Cowrt of Common Pleas.

    Plaintiff alleges in his petition that on the 28th of October, 1854, he executed his promissory note to O. E. Labeaume for $416.25, payable sixty days after date; that this note was endorsed by said Labeaume and by A. & A. Wood & Co.; that said note while the property’of A. & A. Wood & Co. was by said firm deposited with Sellew & Co. as collateral security for a sum of money borrowed by said A. & A. Wood & Co. of Sellew & Co.; that afterwards the money for which the note was deposited as a security was fully paid and A, & A. Wood & Co. became entitled to the return of said note, and said Sellew agreed to return the same, but failed to do so; that while the note- was thus in the possession of said Sellew, plaintiff paid the full amount thereof to A. & A. Wood & Co., and said firm gave to the plaintiff an order in writing on Sellew & Co. requesting the delivery of said note to- plaintiff; that this order was presented to Sellew coupled with a demand for said note ; that Sellew refused to deliver up said note, &c. Plaintiff prayed that defendants might be required by decree of court to surrender up said note to plaintiff to the end that the same might be cancelled, and also prayed damages for its detention. '
    The cause was tried by the court without a jury. The court gave instructions prayed by plaintiff and refused others asked by defendants. The court decreed that the note should be surrendered up to plaintiff.
    Gray, for appellants.
    I. If plaintiff’s note was pledged for the f300 borrowed money and that had been paid, still Sellew & Co. were equitably entitled to retain plaintiff’s note for the unpaid balance of the $1000 draft. No right of action accrued to plaintiff. A. & A. Wood & Co. were alone in privity with Sellew & Co. In a suit by A. & A. Wood & Co., Sellew & Co. could have set off the balance due them. Sellew & Co. could set up their claim against Conran, assignee of A. & A. Wood & Co. The first and second instructions asked by defendants should have been given. Conran could only sue as assignee, and the order did not amount to an assignment. It did not purport to be an assignment; besides, it was made by one partner more than two years after the dissolution. The fourth instruction should have been given. A. Wood and Meyers, who testified for plaintiff, were in the position of assignors of the right of action, and were incompetent to testify about any facts occurring before the assignment, the order of June 29, 1857.
    Grover, for respondent.
   RichaRdson, Judge,

delivered the opinion of the court.

The twelfth section of the tenth article regulating practice in civil cases (R. C. 1855, p.'1261) provides that “ an issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived, or a reference orderedand the thirteenth section directs that “ every other issue must be tried by the court, which, however, may take the opinion of a jury upon any specific question of fact involved therein by an issue made up therein for that purpose, or may refer it.” These provisions manifestly make a distinction between suits which were formerly recognized as actions at law, and bills in equity ; and the mode of trial in a given case under the present code may generally be determined by ascertaining whether under the old system it would be cognizable at law or in equity. In the former class of actions, whether the case is tried by a jury or submitted to the court, propositions of law must be presented in the form of instructions ; (Von Phul v. City of St. Louis, 9 Mo. 49;) but in the latter class, instructions are not required, and perform no function in a case, except to indicate the points of counsel; and in such cases this court will not review instructions given or refused. This cause was properly triable by the court, and the instructions therefore will not be noticed.

There was evidence tending to show that A. & A. Wood & Co. borrowed of the defendant three hundred dollars, for which they executed their note and at the same time left with him as collateral security the note which they held on the plaintiff; that subsequently one of the late firm of A. & A. Wood & Co. paid to the defendant their note for three hundred dollars, and requested that it and also the collateral should be surrendered, which the defendant agreed to do, but did not at the time, for the reason that the collateral was deposited at a banking house, which he promised to send for and deliver up. Under this state of things the defendant had no longer any interest in the note, which had been deposited with him merely to secure the payment of another, but the right to it became reinvested in A. & A. Wood & Co., who could treat it as their own property. They had the right to receive the payment of it, and as soon as the plaintiff paid it he became entitled to the possession of it without any thing more. An assignment of the note was not necessary to give him a right to it after he had paid it. The order on the defendant to deliver the note to the plaintiff was not an assignment, and as either partner after their dissolution had a right to collect the debts due to the firm, either had the right to give the order.

The evidence of A. Wood and Meyers related to facts which occurred after the plaintiff’s note had been assigned to the defendant as collateral security, and there is therefore nothing in the second clause of the sixth section of the act concerning witnesses (R. C. 1855, p. 1577) which rendered either of them incompetent. The other judges concurring, the judgment will be affirmed.


author: RichaRDSON, Judge,

text:
    Hill et al., Appellants, v. Sturgeon & Rawlings, Respondents.
    1. A common carrier is an insurer of goods entrusted to him for transportation ; if loss or damage occur, he is liable unless he shows affirmatively that it happened by reason of some one of the excepted perils. The onus being upon the carrier, he will not be discharged from liability by showing that the navigation was difficult or dangerous, or that he employed skillful or competent persons to control and manage the boat; he must show that the loss occurred in a manner and for a cause that will acquit him.
    2. The words “ dangers of the river, &c.,” in a bill of lading, mean only the natural accidents incident to river navigation, and do not embrace such as may be avoided by the exercise of the skill, judgment and foresight demanded of the carrier.
    3. If at the time of a disaster and consequent damage or loss of goods in charge of a carrier, he is guilty of some delinquency — as by having an incompetent pilot in charge of the boat — if such delinquency might have contributed to the disaster or might have had an agency in producing it, he will be liable; he may, however, show by way of defence that the disaster must have occurred although the delinquency had never existed.
    4. A pilot, who is acquainted with the place of a disaster and with the character for skill of the pilot or steersman in charge of the boat at the time of the disaster, may testify as to whether it was prudent to allow the latter to pilot the boat at the time of the accident.
    6. When either party to a cause offers to read a deposition taken therein, he must read the whole of it, except such portions, if any, as are ruled out by the court as inadmissible.
    6. A clause in a bill of lading given in behalf of a steamboat for goods shipped on a barge, to the effect that the steamboat and owners “ insure the freight shipped on the barge against leaking and sinking,” is intended to insure only the seaworthiness of the barge.

      Appeal from Si. Louis Gou/rt of Common Pleas.

    The facts sufficiently appear in the opinion of the court.

      Knox Sf Kellogg, for appellant.
    I. The owners were liable for a loss caused by the sinking of the barge. The court erred in striking out those portions of the deposition of Credell, in which he stated that he would not on his own responsibility trust Decker to stand on watch. This was clearly competent as the opinion of a skillful pilot, fully acquainted with Decker’s skill and competency. Decker’s deposition should have been excluded. The evidence clearly shows that the loss was not caused by an unavoidable danger of navigation. Decker was not a competent pilot. The boat was in default, and this delinquency might have had an agency in producing the disaster. (11 Mo. 309.) The court erred in refusing the instructions asked by the plaintiff, and in giving those asked by defendant. (See generally 4 Yerg. 48; 5 Yerg. 82; 7 Yerg. 342 ; 2 Sumn. 571 j 1 Murph. 417; 2 Bailey, 161; 1 Wils. 282; 8 Bet. 584 ; 11 Mo. 306 ; 2 Stew. & Port. 176; 1 Sumn. 218 ; 6 Bing. 716 ; 2 Watts, 114 ; 4 Binn. 127; Sto. on Bail. § 413, 492, 516 ; 3 Kent Comm. 220 ; 6 Cow. 266; 8 Watts & S. 44.)

      B. A. Hill, for respondent.
    I. The goods on the barge were lost by the unavoidable danger of the river. The instructions put this question to the jury fairly. (See 11 Miss. 299 ; 5 Yerg. 71; 8 S. & B,. 553; 2 Watts, 443 ; 19 Wend. 234, 251; 21 Wend. 354; 2 Hill, 626 ; 3 Hill, 1; 17 Wend. 305; 1 Murph. 417; 1 Nott & McC. 170; 21 Wend. 190.) The insurance clause in the bill of lading is not an insurance on cargo but upon freight. (See Toml. Law Die. tit. Freight; 2 Cranch, 240 ; 8 Wheat. 505 ; 7 Cranch, 358 ; 12 Wheat. 383 ; 1 Shep. 357; 1 Ired. 236; 3 Sumn. 542; 1 Story, 343 ; 1 Speer, 321; 9 Leigh, 532 ; 2 Sto. 81; 2 McLean, 442 ; 2 Pothier on Obi. 37 ; Co. Litt. 147 a; 4 Dow. P. C. 65 ; 8 Bingh. 244; 7 T. R. 428; 3 Dali. 199; 4 Watts, 89 ; 7 Greenl. 385; 11 East, 312; 4 Camp. 279 ; 8 Taunt. 260; 15 Mass. 433; 2 B. & Ad. 746; 1 T. R. 638. The clause was designed to insure only the seaworthiness of the barge. The court did not err in striking out portions of the depositions of Fulton and Credell.
   RichaRDSON, Judge,

delivered the opinion of the court.

The plaintiffs, who were the owners of the steamboat D. S. Stacey, brought their action against the defendants, who were the owners of the steamboat Ironton and the barge John Argent, to recover the value of merchandise shipped by the Stacey on the steamboat Ironton and barge John Argent. A bill of lading in the usual form was executed by Rawlings, master of the Ironton, in which the dangers of the river and of fire were excepted, and to which was added the following clause: “ The steamboat Ironton and owners insure the freight shipped on the barge against leaking and sinking.” On the 22d of October, 1853, the Stacey stopped at Hat Island, in the Mississippi river, being too heavily laden to bring her cargo over the bars, and for that reason shipped part of her cargo on the Ironton and the barge John Argent to be brought to St. Louis. The river at that time was very low and the navigation difficult and dangerous. It was shown that on the night of the 23d October, 1853, before the moon rose, the Ironton, whilst running up stream in Rozier’s Bend, about sixty miles below St. Louis, with two barges in tow, took a sheer to the larboard, on which side the barge Argent was attached, and drifted so abruptly and violently against the bank that the side of the barge was forced in, which caused it to sink, and by that means property of the plaintiff of the value of fifteen thousand dollars was lost. The plaintiffs contend that the goods were lost by the negligence of the defendants in having an unskillful and incompetent pilot at the wheel at the time of the accident; but the defendants insist that the loss was caused by an unavoidable peril of the river.

There was evidence tending to show that, though all boats are liable to sheer, boats of the class of the Ironton were especially so, and. the liability is greater when they have barges in tow and are running at night; that in low stages of the water and difficult pai’ts of the river boats towing barges ought to be conducted by skillful and competent pilots, for, although a boat may sheer and may be injured in the hands of the best pilot, yet all the witnesses agree in saying that pilots of skill and experience are more likely to foresee the causes that produce sheering and thus avoid them, and are more competent to check with facility and promptness a boat that has sheered and thus prevent it from receiving injury; that various causes operate to make a boat sheer, among the known causes of which are shoal water, counter or cross currents, boils in the river, eddies, inequalities of the bottom, narrow channels, rocks or snags, running too near a bar, adverse winds, defective model, improper loading or trimming of a boat, and bad steering; that many of these causes are visible, especially to a practiced eye, and of course are more readily seen and guarded against in the day time than in the night.

There was also evidence tending to show that Credell was the only pilot on board; that he retired about sun-set, telling the captain that it was better not to run the boat after dark until the moon rose, and was in his bed asleep at the time of the accident; also that, after Credell retired, Henry Decker, who was not a pilot but a mere steersman, took charge of the wheel and was steering the boat when the barge sunk; that regular and competent pilots received that season from two hundred to two hundred and fifty dollars per month, but Decker was employed at forty dollars per month, with the privilege of keeping a bar on the boat, which carried no passengers, and that he had made only five or six trips on the river between St. Louis and Cairo as a steersman, whereas, in the opinion of many of the witnesses, it was unsafe to trust a person with that amount of experience to pilot a boat in the night with barges in tow.

It is a rule founded on public policy and convenience that common carriers are insurers of goods entrusted to them for carriage, and are liable in all events for any loss or damage, unless it happen by some cause or accident for which the law excuses them, or from some cause expressly excepted in the bill of lading; and, when goods are proved to have been delivered to a carrier, the burden is on him to show that he fully performed his contract or that they were lost by one of the excepted perils. The law presumes against him, and he will not be excused by showing that the navigation was difficult or dangerous, or that he employed skillful and competent persons to conduct the boat; but he must discharge himself from liability by showing that the loss occurred in a manner and from a cause that will acquit him. By the common law, all human agency is to be excluded from the cause that produced the injury, and though the usual, clause in bills of lading, of “ dangers of the river,” operates to widen the exceptions, these words only mean the natural accidents incident to river navigation, and do not embrace such as may be avoided by the exercise of that skill, judgment or foresight which are demanded from persons in a particular occupation. (Coggs v. Bernard, 1 Smith’s Lea. Cas. 270 and notes.)

The carrier is not only bound to provide a vessel which is tight, staunch and strong, and in all respects fully equipped for the voyage on which he proposes to embark, but he must employ diligent and skillful officers; for he is responsible for damages resulting from a defect of the vessel, or from want of care and attention on the part of her officers, and also from the want of proper knowledge and skill to manage her. It was formerly held that if the carrier was delinquent in any of his duties, and a loss occurred whilst his wrongful act was in operation and force, though it did not remotely (contribute to the injury, he could not set up as a defence to the action the bare possibility of a loss if he had been all the 5 time in the line of his duty; but it is now held that he will f not be responsible if the loss was wholly independent of his default, and, not might, but must, have happened in any aspect of the case. This is the principle decided by this court in Collier v. Valentine, 11 Mo. 309, in which it was held that the carrier “ is permitted to show, by way of defence, that, although he may have been in default, yet that the loss was independent of that default and must have happened although it had never existed; btrf.a delinquency, which might have contributed to the disaster occasioning the loss, or negligence or carelessness at the time of its occurrence, which might have had an agency in producing it, will render him liable.” Human life and valuable property are committed to the honesty, the diligence and skill of the owners and officers of steamboats and other vessels; and as the public have no means of knowing whether the boat or vessel is safe, or whether the officers are competent for their places, their only security is in the vigor of the law and its faithful administration, which hold the carrier to a severe responsibility. He should not be allowed to trifle with the lives and property of others by risking either in unsafe crafts, or by committing them to the mercy of negligent or incompetent officers. And if, at the time the loss happens, the carrier is in the omission of a duty or in the act of doing any thing improper, and the omission or act might have had an agency in causing the damage, he ought not to be permitted to impute to the elements in the dangers of navigation a disaster which may have been the result of his own conduct. If it appear that the sheering of the boat was caused by running too near to the bar on the starboard, or by any other imprudence, or by neglecting any proper measure of precaution, the defendants will be liable. And if it is shown that Decker was not a competent pilot, the plaintiff will not be required to prove affirmatively that the loss resulted from any want of attention or skill on his part at the time of the accident, but the onus will be on the defendants to establish that the loss must have happened if a competent pilot had been at the helm. The defendants are bound to show that the loss was caused by a peril of the river which could not have been foreseen or prevented by the exercise of skill or diligence; and they can ■ only exonerate themselves by showing that the injury not only might but must have occurred independently of. their neglect, and that the presence of Decker at the wheel did not in any manner contribute to it.

The witness should have been allowed to answer the question whether it was proper to suffer Decker to pilot the boat at the time and at the place of the accident. He knew the pilot and the place, and, as an expert, was competent to answer the question.

We see nothing in the objection to the competency of Decker as a witness, or to the propriety of reading his deposition.

The obscurity of the record is such that we do not understand the natute or scope of the objection to the reading of Credell’s deposition taken by the defendants. If, however, it is intended to present the point whether a party can read to the jury only such portions of a deposition as suits them, we say that when either party offers to read a deposition which has been taken in the cause, he must read all of it, except, of course, such parts as are decided by the court to be incompetent.

The last clause in the bill of lading, we think, was only intended to insure the seaworthiness of the barge, that it should not leak or sink by reason of its infirmities. It was not designed to insure the goods shipped on the barge from loss that might happen to it by external violence, for such a construction would not only do away with the common law exceptions, but those expressly named in a previous part of the bill of lading.

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


text:
    Paston et al., Respondents, v. Bussmeyer, Appellant.
    1. The third section of the act of 1855 concerning bonds, notes and accounts (R. C. 1855, p. 322), allowing the obligor or maker of a non-negotiable promissory note every just set-off against the assignor existing at the time of the assignment unless it is expressed in the note that it is “for value received, negotiable and payable without defalcation,” is not applicable to notes executed before the revised code of 1865 went into effect and made payable “without defalcation or discount,” although assigned after said code went into effect.

      Appeal from St. Louis Circuit Cowrt.

      Krum 8f Harding, for appellant.

      S. T. Sf A. D. Glover, for respondents.
   Scott, Judge,

delivered the opinion of the court.

This was an action by an assignee on an assigned note for $836.71, due one day after date, and drawn negotiable and payable without defalcation or discount. The note bore date 25th January, 1856, and was assigned on the 10th day of February, 1857. The defence was a set-off against the payee and assignor before the assignment. The defence was overruled and a judgment was rendered for the plaintiffs. The defendant maintained that as the note did not contain the words “ for value received,” and, as it was assigned after the act of 1855 (R. C. 1855, p. 319) concerning bonds, notes and accounts had taken effect, it was controlled by the third section of that act, and consequently he had a right to plead a set-off against the payee and assignor.

The case of Smith v. Ashley, 20 Mo. 354, determined that the third section of the third article of the practice act of 1849 did not repeal the third section of the act of 1845 concerning bonds and notes. Then, at the date of the note sued on in this section, the act of 1845 was in force. By the third section of that act, as the note was payable “ without defalcation or discount,” it was not subject to the defence of a set-off at the time it was executed. When the note was assigned tbe act of 1855 had taken effect, and, by the third section of that act, notes drawn in the form of that involved in this controversy were subject to the defence of a set-off against the payee and assignor. The question then is whether notes, not subject to the defence of a set-off when they were made, become subject to such a defence under the third section of the act of 1855.

The defences to which an action on a contract is subject are of the substance of the contract, and are to be determined by the law in force at the time of entering into it. This rule 'is subject only to the restriction that, as to the time of bringing or form of the action, the laws of the forum will govern. Here was a contract in which one of the parties agreed that in the event of its assignment he would not make a certain defence against it. This stipulation rendered the contract more valuable in the hands of him to whom it was made, and, even-had the general assembly power to do so, we will not so construe the act as to make it injuriously affect a contract already in existence. We must construe the third section of the act of 1855 as only intended for contracts which should be made after it went into effect.

Judgment affirmed;

Judge Napton concurring. Judge Richardson not sitting.


author: Soott, Judge,

text:
    Barret, Respondent, v. Evans, Appellant.
    1. Where the endorser of a negotiable promissory note resides within the town or city where protest thereof is made, notice of protest must be served upon him personally, or it must be left at his place of abode or of business ; if, however, his residence is outside the city limits, though near the same, and though his address is the city post-office, it is sufficient if notice of protest be deposited, directed to him, in the city post-office.

      Appeal from St. Louis Court of Common Pleas.

    This was an action against defendant as endorser of a promissory note. The defence relied on was that Evans had not received due notice of protest of the note. At the trial it appeared that notice of protest had been given by a letter directed to the defendant Evans and deposited in the St. Louis post-office. Evans at the time of protest lived between two and three miles from the court-house, in St. Louis county, outside the city limits. He had been living at the same place for eighteen years. He was in the habit of getting his letters at the St. Louis post-office. All the other parties to the note lived in the city of St. Louis.
    The cause was tried by the court without a jury. The court, at the instance of the plaintiff, gave the following instruction or declaration of law : “ If from the evidence tho court believe that defendant, at the time the note was protested and notice sent, resided out of the city of St. Louis, but received his letters at the St. Louis post-office, and shall find that the notice of protest and nonpayment was placed in the said post-office directed to defendant at the time and as stated in the protest and certificate of the notary, then the plaintiff is entitled to recover.”
    The court refused the following, asked by the defendant: “ It being shown that all the parties to the note sued on lived in or near St. Louis, the notice of protest should have been served on defendant personally or left at his residence in order to charge him as endorser ; and it was not sufficient to leave a copy of the notice at the St. Louis post-office directed to defendant.”
    The court found and rendered judgment for plaintiff.

      T. C. Johnson, for plaintiff.
    I. The notice was not sufficient to fix the liability of defendant as endorser. He was entitled to personal notice or notice left at his dwelling. Notice through the post-office is not good except where the notice is deposited to be transmitted to another post-office. (4 Hill, 133; 2 Hill, 587 ; 5 Mete. 352, 492; 3 Harring. 419; 15 Maine, 143; 8 W. & S. 138 ; 5 Louis. 359 ; 6 Louis.. 506; 5 Mart., N. S., 359.)

      Thomas Sf Sharp, for respondent.
   Soott, Judge,

delivered the opinion of the court.

The question in this case is whether the endorsee of a negotiable promissory note, whose residence is near but outside of the limits of the city of St. Louis, and whose post-office is the city office, can be served with notice of the protest of the note through his post-office, which is that of the city.

This case finds authority in the books for deciding it either way. Under such circumstances we are at liberty to adopt that course which seems most conducive to uniformity in the law, and which will produce the least litigation and strife. Where the party to be served is a resident of the city or town where the protest is made, the course required is to give him personal notice,' or to leave it at his dwelling or place of business. But if he lives in the country, then a notice by mail to his post-office will be sufficient. Now as the party in this case lived in the country outside of the city, why should not a notice through his post-office be sufficient ? If we once depart from the city limits as the rule as to residence, where shall we go ? 'How far out must the party be to deprive him of a personal notice or its equivalent. This must lead to dispute. The other rule is preferable for its certainty, as it leaves no ground for controversy. In an old case, the course adopted here was pursued in relation to giving notice to one outside but near the city of St. Louis. It seems that no exception was taken to it in that case. (Walker v. The Bank of Missouri, 8 Mo. 704.) We do not deem it necessary to state and review the cases on this question. There is ample authority for the opinion we have expressed.

The other judges concur.

Affirmed.


author: EichaRDSON, Judge,

text:
    Harney, Appellant, v. Scott, Respondent.
    1. An appeal will lie from an order of a probate court revoking letters of administration; the appeal -will not, however, operate a suspension of the effect of the order.

      Appeal from St. Louis Court of Common Pleas.

    This was an action to recover the hire of a certain slave alleged to have been hired by the plaintiff to defendant, and the value of certain other slaves alleged to have been wrongfully taken and converted by the defendant. Harney, the plaintiff, was appointed administrator de bonis non of the estate of Milton Duty, deceased. The slaves in controversy belonged to said estate. Harney, while such administrator, hired one of said slaves to the firm of Scott & Whitelaw, of which defendant Scott was a member. A will being after-wards produced and admitted to probate, the probate court made an order revoking Harney’s letters, and letters of administration were granted to the defendant Scott, who thereupon took possession of the other slaves mentioned in the petition. Harney appealed from the order of the probate court revoking his letters, and this appeal was pending at the time this cause was heard in the court of common pleas. Instructions were given and refused against the objection of the plaintiff; he submitted to a nonsuit, with leave, &c.

      Krum Sf Harding, for appellant.
    I. The contract for the hire of the negro was made with the plaintiff in his individual capacity. The instruction No. 1 given is erroneous. (7 Mo. 351; 9 Mo. 377 ; 15 Mo. 89.) The appeal taken by the plaintiff from the order of the probate court revoking his letters of administration suspended the operation of that order so long as the appeal was pending and undetermined. The right of plaintiff to hold possession or sue for any of the property in question was not affected by said order. Prima facie plaintiff was entitled to the possession of the negroes.

      Hart and Biddlecome, for respondent.
   EichaRDSON, Judge,

delivered the opinion of the court.

The only question in this case is whether the appeal, taken by the plaintiff, from the order of the probate court revoking his letters of administration, suspended the effect of the order. The point was decided in Mullanphy v. County Court of St. Louis County, 6 Mo. 563, and is decisive of this case.

Judge Napton concurring, the judgment will be affirmed.


author: RICHARDSON, Judge,

text:
    Syme et al., Respondents, v. Steamboat Indiana, Appellant.
    1. The objection that a petition dóes not state facts constituting a cause of action is not waived by a failure to take the same by demurrer; the defendant may make the same by motion for new trial, or may at the trial oppose on this ground the introduction of evidence on the part of the plaintiff.

      Appeal from St. Louis Circuit Court.

    The petition in this case is as follows: “ Plaintiffs state that they have a demand against said steamboat Indiana, amounting to the sum of $323.39, damages and charges, for that the master of said boat, as also Stoops, clerk of said boat, in navigating the waters of this state, undertook and agreed by his certain writing, which is hereto annexed and made part hereof, signed by said clerk in behalf of said boat, to carry and transport certain goods, wares and merchandise, the property of plaintiffs, to-wit, one case of merchandise, from the port of New Orleans, Louisiana, to the port of St. Louis, Missouri, as by said writing, now produced or ready to be produced, will more fully appear, and as also appears by the bill of lading now or hereafter to be produced; and the said plaintiffs say that although sufficient time has elapsed for the due performance of said agreement, the said master and clerk of said steamboat have hitherto wholly neglected and refused to perform the same, to the plaintiffs’ damage as aforesaid. And said plaintiffs say that the said demand, in all its particulars as above stated, accrued against said steamboat within six months next preceding the filing of this complaint.”
    Neither the writing described in the petition nor the bill of lading referred to was annexed thereto. At tlie trial, the defendant objected to the introduction of any evidence in the cause on the part of the plaintiffs on the ground that the petition did not state facts sufficient to constitute a cause of action. The court overruled the objection. The jury found for the plaintiffs. The defendant moved the court to grant a new trial upon the ground, among others, that the petition did not state facts sufficient to constitute a cause of action.

      Bland 8f Coleman, for appellant.
    I. The defendant may, upon the trial of an action, take the objection that the petition does not state facts sufficient to constitute a cause of action. It is the duty of the court to hear and determine such an objection. (R. C. 1855, p. 1231; T Barb. 581; 9 Barb. 158 ; 19 Barb. 186 ; 3 Seld. 459; 3 Seld. 576.) The petition does not allege that the defendant is a vessel used in navigating the waters of this state, or in any manner aver any facts giving the court jurisdiction in the premises. It does not state that the defendant was a common carrier. It does not state that defendant did receive or was to receive any compensation for the transportation of the goods. (23 Mo. 432 ;• 24 Mo. 80 ; 9 Barb. 158.) The court erred in refusing the instruction asked by the defendant, and in instructing the jury, and in overruling the motion for a new trial.
    Carroll, for respondents.
    I. It is too late to object to the form of the petition at the trial. If defendant wished to assail the petition, a demurrer should have been filed. (See R. C. 1855, p. 1255, § 19.)
   RICHARDSON, Judge,

delivered the opinion of the court.

The only question in this case is whether the petition is sufficient to support the judgment. It will be observed that the petition omits to charge that the defendant was a common carrier or that the goods were ever received, or that the defendant had converted them, or that there was any consideration for tbe alleged -undertaking. The defendant did not demur, but in tbe answer denied the allegations in the petition, and took the objection, on the trial, that the petition did not state facts sufficient to constitute a cause of action, and opposed the introduction of any evidence on the part of the plaintiffs.

If the petition had averred that the defendant was a common carrier, then, in consequence of the public employment voluntarily assumed, the boat would not only have been bound to receive the goods offered for carriage, but to have transported them to St. Louis, and, though no special contract had been made to pay a certain sum, it could have been safely averred that the undertaking was for a reasonable reward, as the right to compensation would have existed. But the petition states no fact that imposed any obligation on the defendant, and it omits the averment of any circumstances to distinguish the case from an ordinary gratuitous bailment. It does not even allege that the defendant ever received the goods, but only states a promise without any consideration to carry them.

The defendant might have demurred successfully to the petition. But the right to object at the trial, or on a motion in arrest, was not waived by the omission to demur, for the statute expressly provides that the objection, that the petition does not state facts sufficient to constitute a cause of action, is not waived by a failure to demur. (2 R. C. 1855, p. 1231; Andrews v. Lynch, 27 Mo. 167; Welch v. Bryan, 28 Mo. 30; Montgomery Co. Bank v. Albany City Bank, 7 N. Y. 464; Could v. Glass, 19 Barb. 185.) It is not necessary for a party to prove more than he alleges, and it can not be supposed that a cause of action has been proved when none is stated.

With the concurrence of the other judges, the judgment will be reversed and the cause remanded.


text:
    Cunningham, Respondent, v. Steamboat Low-Water, Appellant.
    1. Where a hand, employed on a steamboat for a trip at certain agreed wages per month, is, without cause, discharged before the termination of the trip, he may recover compensation at the agreed wages for a trip of the usual length; if the trip should be extended by accident beyond the usual period, he could not recover full wages for the whole time including the accidental detention.

      Appeal from St. Louis Law Commissioner’s Court.

    This was an action against the steamboat Low-Water to recover “ one trip’s wages as a rousabout,” alleged to be due plaintiff. The second instruction referred to in the opinion is as follows: “ If the jury believe that the plaintiff was laired for the trip and was put off the boat without fault and without his consent, then he is entitled to recover for the full trip, and the amount paid to the plaintiff at St. Charles is no bar to the suit, unless it was received by the plaintiff as a settlement in full for the trip or time for which he was hired, but is a credit on his claim of the amount received.” •

      S. II. Gardner and Jecho, for appellant.
    I. Under the statute the boat was only liable “ for work done or services rendered on board the same.” Plaintiff was paid for all the services actually rendered. (16 Mo. 266; 19 Mo. 476.) If the doctrine laid down in the instruction given be correct, the plaintiff could have recovered wages until the boat returned to St. Louis, even had she been detained up the Missouri for six months.

      Kellam, for respondent.
   Napton, Judge,

delivered the opinion of the court.

The second instruction which the court gave in this case, although a correct exposition of the law generally, was not, we think, proper under the circumstances. There was evidence to show that, by an accident to her machinery, the boat was detained some eight days beyond the usual period of her trips, and the instruction should have limited the recovery to full wages for a successful trip of the ordinary length. (The Elizabeth, 2 Dodson’s Ad. R. 403.)

The instruction which was asked on behalf of the boat, directing the jury to deduct wages which were earned or might have been earned on other boats, was properly refused, because there was no evidence given to show that such wages were obtained or could have been obtained.

We merely refer to the opinion of the court in the case of Th. Grant v. The Steamboat Maria Denning, for our opinion upon the points presented by the other instructions. (See ante, p. 280.)

The other judges concur.

Judgment reversed and cause remanded.


author: Richardson, Judge,

text:
    Renick & Peterson, Respondents, v. Robbins, Appellant.
    1. Tbe notary who presents and protests a bill of exchange for nonpayment is authorized to give notice to the various parties to the bill.

      ‘2. No particular form of notice is required; it is sufficient if the words employed, either in express terms or by necessary implication, give identity to the bill and information that it has not been accepted or paid upon due presentment.

      Appeal from St. Louis Cou/rt of Common Pleas.

      Grover, for appellant.

      Gantt, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

This case was tried without a jury and without instructions, and the only exceptions taken during the progress of the trial were to the decisions of the court' in refusing to exclude portions of the deposition of Latham. It appears from the bill of exceptions that the plaintiff read, from the published statutes of Louisiana, a law of that state, which authorized notaries public in New Orleans to appoint one or more deputies to assist them in the making of protests and delivery of notices of protests of bills of exchange and promissory notes; and, conceding that the written law of another state can not be proved by parol evidence or by a witness not shown to be competent to testify on such subjects, the judgment should not for that reason alone be reversed; for, though the evidence was incompetent to establish the fact sought to be proved by it, it was undoubtedly established by other competent testimony.

The notices of the dishonor of the bill were given by the notary, who presented it for payment and protested it for nonpayment. A notice given by a mere stranger is a nullity, but the notary who presents and protests the bills is regarded, to a certain extent, as the agent of the holder, and is authorized, by his character and employment, to give notice to any of the other parties on the bill. The object of notice is to advise the drawer or endorser of the fact that the bill has been dishonored, but no particular form is required for that purpose, and it is sufficient if the words employed, either in express terms or by necessary implication, give identity to the bill and information that it has not been accepted or paid on due presentment. A misdescription of the bill will not vitiate the notice, unless it misleads the party notified, and “ unless the variance is such that, under the circumstances of the case, the notice conveys no sufficient knowledge to the drawer or endorser of the identity of the particular note or bill which had been dishonored.” (Edwards, Bills & Prom. Notes, 471, 588-9.)

The cases are conflicting on the point whether the sufficiency of a written notice is a question of law to be decided by the court, or whether in the case of a misdescription of the bill it should be left to the jury to say whether the party had been misled. In some instances it becomes a mixed question of law and fact. But it is unnecessary now to discuss the doctrine, as both the law and the facts in this case were submitted to the court. The other judges concui'ring, the judgment will be affirmed.


text:
    Cline & Jamison, Respondents, v. Brainard et al., Appellants.
    1. Where an application is made for a continuance on the ground of the absence of a material witness, it must appear from the accompanying affidavit that the applicant had used due diligence to procure the testimony of such absentee.

      Appeal from St. Louis Circuit Cowt.

      McClellan, Moody Hillyer, for appellants.

      Cline Jamison, for respondents.
   Richardson, Judge,

delivered the opinion of the court.

The only error assigned in this case is the refusal of the court to continue the cause on the defendant’s application. The action was founded upon a promissory note, and the summons — which was returnable to the October term, 1857, of the circuit court — was personally served on the defendant on the 18th day of the preceding September. When the cause was called for trial on the first day of December following, the defendant applied for a continuance, and presented his affidavit, in which the reasons for the application are stated, which were that he could not safely go into trial without the testimony of Henry Holmes, who had lately resided in St. Louis, but was then absent in Texas, where he then resided ; that his testimony was material and could not be supplied by any other witness ; that on the 28th of November, 1857, he caused a subpoena to be issued for said Holmes, which the sheriff had returned non est, and that since he learned of the absence of Holmes he had not had time to give the requisite notice and take- his deposition, but expected to procure his deposition in time for the trial at the succeeding term.

In our opinion, the application for a continuance was properly overruled. Nothing is stated in the affidavit inconsistent with the idea that the defendant knew of the intention of Holmes to remove from the state long before he left. He does not state when he left, or that he left without his knowledge, or too soon after he heard of his purpose to leave to take his deposition. He only says that he had no time to take his deposition after he went to Texas. ; The cause was pending more than two months, and the defendant may have known all the time up to a few days before the trial, that the witness expected to go out of the state. The other judges concurring, the judgment will be affirmed.


text:
    Lucas et al., Respondents, v. Ladew et al., Appellants.
    1. Upon the protest for non acceptance of a sight hill of exchange entitled to days of grace and the giving of notices to the drawer and endorsers, their liability to the holder is immediately fixed •; it is not necessary that the bill should be presented for payment on the last day of grace.
    2. Although days of grace upon sight bills have been abolished by statute in this state, it will he presumed, in.the absence of proof of change by legislative enactments,- that the common law, allowing days of grace upon such hills, is the law of a sister state or a territory of the United States.

      Appeal from St. Louis Court of Common Pleas.

    This was an action 'by- plaintiffs, as: endorsers- of. a- bill of exchange, payable.at sight, drawn at-New-York by one B. F. Maniere on Smoot, Russell &• Co.,-at Leavenworth city, in Kansas territory,-in favor of John Dorsey, and by! him endorsed to defendants and by them- endorsed to-plaintiffs. It appeared that when the bill was endorsed over to the plaintiffs they sent it to Smoot, Russell ■& Co. (who were their business correspondents in Leavenworth city) for collection; that the latter caused it to be protested for non acceptance on the 17th of March and for non payment on the 21st of March. A correspondence ensued between plaintiffs and Smoot, Russell & Co., in reference to the liability of the latter to plaintiffs for the amount of the bill by reason of Smoot, Russell & Co.’s not having caused the bill to be protested for nonpayment on the last day of grace, that is, on the 20th instead of the 21st day of March. Smoot, Russell & Co. finally agreed to leave in the hands of plaintiff, during the pendency of a suit on the bill by plaintiffs against defendants, an amount sufficient to pay the same if plaintiffs should fail to recover of defendants, and to be responsible for all costs of the suit and for attorney’s fees in prosecuting the same.
    At the request of the plaintiffs, the court gave the following instruction: “ The presentation of the bill sued on to the drawees for acceptance on the 17th day of March, 1857, their refusal to accept, the protest of the bill for non acceptance on that day, and notice then to the defendants of the non acceptance, being admitted in the pleadings, their liability as endorsers of the bill was, by those admitted facts, fixed, and the subsequent protest of the bill on the 21st of March had no effect to discharge that liability.”
    At the request of the defendants the court gave the following instruction : “ If Smoot, Russell & Co. had paid to the plaintiffs the amount, and this suit is prosecuted by plaintiffs for the sole use and benefit of Smoot, Russell & Co., then the court sitting as a jury ought to find for defendants.”
    The defendants asked the court .to give the following instruction, which was refused: “ If the bill of exchange read in evidence was not presented to Smoot, Russell & Co., for payment and protested until four days after it was presented for acceptance, and that at the time it was presented for acceptance no demand was made for the payment thereof, but Smoot, Russell & Co., acting as the agents of the plaintiffs at that time, and as such agents directed said note not to be presented or protested for nonpayment on the day it was presented for acceptance, this discharges the defendants from liability to the plaintiffs.”
    The court sitting as a jury tried the cause and found for the plaintiffs.

      H. IV. Hart, for appellants.
    - I. The instruction given for the plaintiffs was erroneous. If the draft was entitled to grace after presentment, then surely the 21st was one day over grace, and the endorsers were released; if the draft was payable on the day it was received by Smoot, Russell & Oo., then a demand of payment on that day was necessary, and, in case of refusal, a protest for nonpayment must be made on that day. Smoot, Russell & Co. directed the notary to protest the bill for non acceptance on the ITth of March, and then to hold it until it matured. The notary mistook the day of maturity. The court further erred in refusing to admit Mr. Drake’s opinion. It did not come within the rule as to confidential communications between counsel and client.

      Drake, for respondents.
    I. The count properly excluded the legal opinion given by Mr. Drake to the plaintiffs. The liability of the defendants as endorsers was fixed upon the protest for non acceptance and the notice thereof. The second instruction asked by the' defendants and refused was rightly refused. It assumed that the bill was payable strictly at sight without days of grace, and should therefore have been protested for non payment on the day it was first presented to the drawees, instead of for non acceptance. At common law a bill payable at sight was entitled to days of gracp. (Story on Bills, § 343.) In the absence of proof to the contrary, the common law must be held to have prevailed in Kansas. The bill was entitled to days of grace. (8 Mo. 7; Johnson v. Dicken, 25 Mo. 582 ; Abell v. Douglass, 4 Denio, 305; 1 Pick. 415 ; Stout v. Wood, 1 Blackf. 71; 15 Ill. 263 ; 25 Ala. 540.)
   Napton, Judge,

delivered the opinion of the court.

The instructions upon which this case was tried were, in our opinion, correct. It is well settled, both in England and America, that, upon protest for non acceptance and notice, the drawer and endorsers of a bill are responsible immediately to the holder, and the failure to present the bill again for payment has no effect in discharging that liability. Whether the bill in this case was presented for payment on the 20th or 21st was therefore immaterial, as it was presented for acceptance on the 17th and acceptance was refused, and it was duly protested and notice sent immediately to the defendants. (Story on Bills, § 321, 322, 366; Watson v. Turpley, 18 How. 517; Renshaw v. Triplett, 23 Mo. 213.)

By the common law, bills payable at sight are entitled to days of grace, and although grace upon sight bills is abolished by our statute (R. C. 1855, p. 298, § 18), yet we presume the common law to prevail in a sister state or territory, in the absence of proof of any change by legislative enactments. (Houghtaling v. Ball, 19 Mo. 84; Abell v. Douglass, 4 Denio, 375 ; Stout v. Wood, 1 Blackf. 71; Ellis v. White, 25 Ala. 504.) As the bill sued on was entitled to grace, the instruction asked by the defendants was properly refused.

The opinion of Mr. Drake, the plaintiffs’ attorney, in relation to the liability of Smoot, Russell & Co., was properly excluded, not because there was any thing of a confidential nature in it, but because it was an opinion and therefore had nothing to do with the ease.

Whether Lucas & Co. had collected the bill from Smoot, R. & Co. and were acting as mere agents of the latter in this suit, was submitted to the jury at the request of the defendants. We do not consider the plaintiffs as necessarily occupying such a position from the mere fact of their retaining a balance in their hands sufficient to cover the bill, with the consent of S., R. & Co., nor from the additional fact that S., R. & Co. agreed to, pay the bill if the plaintiffs should not succeed in holding the defendants liable, and this is the most which the correspondence between the parties would appear to establish. But this was a question of fact upon which the jury have passed, and there is certainly no ground for disturbing their verdict.

The other judges concurring, the judgment is affirmed.


text:
    Harrison’s Administrator, Respondent, v. Hastings et al., Appellants.
    1. A defendant -will not be permitted at the trial of a cause to amend by denying facts admitted in his answer.

      Appeal from, St. Louis Court of Common Pleas.

      D. C. Woods, for appellants.

      A. M. Gardner, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

The payee and endorser of the note sued on madeja written contract with the defendants, by which he agreed to cause two balloon ascensions to be made at Boonville*on the first and fourth days of October, 1855, and also to give two exhibitions of fire-works — one on each of said days. The defendants agreed to pay Peckham, for the two balloon ascensions and exhibitions of fire-works, eight hundred dollars, for which they executed and delivered their two negotiable promissory notes, each for four hundred dollars, the note described in the petition being one of them. It was further stipulated in the contract that “ it is understood by the parties that each balloon ascension is to be at the rate of two hundred and seventy-five dollars, and each exhibition of fireworks is to be at the rate of one hundred and twenty-five dollars.” Both of the notes were endorsed for value to the plaintiffs’ intestate before they matured. The defendants admitted in their answer that Peckham caused to be made one balloon ascension and one exhibition of fire-works, but set up as a defence a failure of the consideration of the note sued on, although the other note had been surrendered to them. One of the witnesses on the trial stated that only one ascension was attempted, which he considered, a failure. At the close of the testimony the defendants asked leave to amend their answer so as to make it conform to the evidence, but the court refused leave.

By the agreement of the parties the consideration of each note was kept separate and distinct, and consequently the failure of the consideration of one note did not affect the right to maintain an action on the other. The answer concedes that there was a consideration for the note sued on, for it admits that there was one balloon ascension and one exhibition of fire-works. There is no pretence in the answer that the entire consideration of both notes had failed, and by their own admission they were not damaged by the failure of the consideration of the other note as it was delivered up to them. We think the court properly refused the instructions asked by the defendants, and correctly stated the law in the instruction that was given.

There was no error in refusing permission to amend. The only ground for the amendment was the evidence of a witness disclosed at the trial, and the party sought by an amendment to deny a fact which was admitted in the answer.

The other judges concurring, the judgment will be affirmed.