text:
    Frazier et al., Respondents, v. Bishop, Appellant.
    1. Where it appeared that on the second day of the term of a court the defendant in a suit on a promissory note, in which no answer had yet been put in, was compelled to appear before the grand jury then in session, and was still before them when the court adjourned at a time early than usual, and was thus prevented from filing his answer before the adjournment of the court, and did afterwards file it with the clerk on the same day; held, that he was entitled feqhave a judgment by default rendered against him on the said second day of the term set aside. (R. C. 1855; p. 1235, § 24._)

      Appeal from Barton Circuit Court.

    The 'facts sufficiently appear in the opinion of the court.

      Bray, for appellant.
    I. The act of 1855 does not confine the time for filing pleadings to the hours the court is in session. (R. C. 1855, p. 1235, § 24, 26.) It is clearly in the power of the court to grant leave to file pleadings at a different time from that specified by the practice act. The court abused its discretionary power in refusing to permit defendant to file his answer.

      Johnson Ballou, for respondents.
    I. There was no motion to set aside the judgment. (1 Mo. 110.) The defendant was guilty of negligence in not filing his answer on the second day. (10 Mo. 393 ; 6 Mo. 254 ; 8 Mo. 679; 21 Mo. 354 ; 7 Mo. 6 ; 13 Mo. 207.) He was bound to plead on or before the second day of the term. (R. C. 1855, p. 1235, § 24, 25, 26.) The answer discloses no sufficient defence. The affidavit should have stated the hour the court adjourned; the court may have known that it did not adjourn at an hour earlier than usual. The return term was the trial term.
   Napton, Judge,

delivered the opinion of the court.

This suit was upon two promissory notes, and the defendant having been personally served in due time, judgment was taken on the second day for want of answer; on the third day the defendant moved to set aside this judgment and for leave to file his answer, which was appended to the motion, upon grounds disclosed in an accompanying affidavit. The affidavit of defendant stated that his answer was drawn up and ready to be filed on the second day of the court, with the exception that it was not yet sworn to, and that he was compelled to appear before the grand jury on that day, and that the court adjourned at an earlier time than usual and whilst be, the defendant, was still before the jury; that, as soon as he was dischai’ged, he swore to his answer before the clerk and filed it, but the court had then adjourned. This motion was overruled and an exception taken, which presents the only point for our consideration.

We are unable to perceive any -grounds upon which the court was authorized to refuse this application. The defendant, being a witness before the grand jury, could not have any means of knowing how long his-attendance there might be required; and the unexpected adjournment of the court was calculated to take the defendant by surprise. It could be a matter of no sort of importance to the opposite party that the answer was filed an hour earlier or later ; nor is it seen that the dispatch of business generally would be affected by allowing the answer to be filed. But we put the case entirely on the ground that the defendant was, at the time within which he was authorized to file his answer, otherwise employed in obedience to a mandate of the court or its officer, and that his rights 'ought not to be prejudiced thereby.

The other judges concurring, the judgment is reversed and case remanded.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Gainey, Respondent, v. Sexton’s Administrator, Appellant.
    1. Judgments obtained in a sister state are not entitled, under our administra-, tion act, to be classed in the fourth class of claims against the estates of decedents; they are entitled to no preference oyer any other debts.

      Appeal from Barry Circuit Court.

    This was an application for the allowance of a demand against the estate of John Sexton, deceased. The demand was founded on a judgment rendered against said John Sexton in his lifetime, in the state .of Indiana. The probate court of Barry county allowed tbe demand and placed it in the fourth class of allowed claims. An appeal was taken to the circuit court by the administrator. In-the circuit court the plaintiff appeared and moved the court to dismiss the appeal because it was not taken at the term at which the allowance of the demand was made. The court granted the motion.

      Edwan'ds Ewing, for appellant.
    I. The circuit court erred in dismissing the appeal. The defendant having appeared in the circuit court, it cured all defects. It was the duty of the court to try the case.

      Boone Sf Cravens, for respondent.
    I. The circuit court had no jurisdiction of the cause, and therefore very properly sustained the motion to dismiss the appeal. (R. C. 1855, p. 174, § 2.)
   Scott, Judge,

delivered the opinion of the court.

This judgment will be reversed. The probate court clearly erred in placing a judgment rendered in another state in the same class with those rendered in the courts of this state. The judgments of the sister states have no preference over any other debts. Only the judgments rendered in the courts of this state can be placed in the fourth class of demands. (Harness v. Green’s Adm’r, 20 Mo. 316.)

The bill of exceptions does not show but what the appeal was taken and the affidavit filed during the term of the court. The evidence disproving this is not preserved in the bill of exceptions.

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


author: Ewing, Judge,

text:
    McCollum, Defendant in Error, v. Lougan’s Administrator, Plaintiff in Error.
    1. A defendant filed a demurrer to the petition in the suit against him; after-wards, while the demurrer was still pending, in vacation, and without leave previously granted, the plaintiff filed with the clerk of the court an amended petition. At the next term the defendant moved the court to strike out the amended petition; the court overruled the motion, and afterwards gave judgment by default against the defendant. Held, that the action of the court upon the motion to strike out the amended petition cured any irregularity in filing it with the clerk in vacation without leave first granted; that the filing of the amended petition having been thus sanctioned, the original petition was superseded, and the demurrer thereto impliedly sustained.

      Error to Jasper Circuit Cowt.

    The facts sufficiently appear in the opinion of the court.

      Kendrick Sf Grant, for plaintiff in error.
    ■ I. There was no legal authority to file the amended answer with the clerk in vacation. The court ought to have sustained the motion to strike it out. The court ought not to have rendered a decree upon the amended petition, nor upon the original petition until the demurrer thereto had been disposed of.

      Johnson Sf Ballou, for defendant in error.
    I. The court by its action sustained the filing of the answer in vacation without previous leave. The defendant by making the motion to strike out waived the demurrer. He is estopped from making the objection here. (6 Mo. 174, 177, 821; 1 Mo. 534.) The judgment is for the right party. (1 Mo. 115 ; 6 Mo. 321.) The amended petition superseded the original petition, as well as the demurrer thereto.
   Ewing, Judge,

delivered the opinion of the court.

This was a proceeding, commenced in the county court, to compel the administrator of the estate of S. Lougan, deceased, to execute specifically a contract for the conveyance of land. Aftei’ tbe petition was presented in tbe county court, the case was transfeiued to tbe circuit court, leave bavbxg been first given to file an amended petition. In tbe circuit court, a demurrer was filed to tbe petition at tbe April term, 1858. The plaintiff filed an amended petition with the clerk in vacation, and at tbe November term, 1858, following, tbe defendant filed bis motion to strike out tbe amended petition. The motion was overruled, and tbe defendant excepted ; and no answer having been filed, plaintiff had a decree for the specific performance of tbe contract. No motion was made to set aside tbe decree and grant a new bearing, nor in arrest of judgment. Tbe errors assigned are, that tbe filing tbe amended petition with the clerk was unauthorized, and that it should for that reason have been stricken out; and .that no decree ought to have been entered upon tbe amended"p.etition until tbe demurrer bad been disposed of.

It may be^onceded that tbe filing the petition with tbe clei’k was irregular; but tbe subsequent action of the court upon it recognizing it as a pleading in the cause, and as taking tbe place of the original petition, was equivalent to granting formal leave to file it in term. It may be considered as having been filed for the first time regularly at tbe November term, 1858, when a motion was made by tbe defendant to strike it out and overruled. Tbe action of tbe court in thus overruling the motion, although no previous leave bad been given authorizing the amendment, cured any irregularity in filing it with tbe clerk without leave.

As it respects the second point, we think the amended petition superseded tbe original one to which the demurrer had been filed, and the amendment having been allowed pending the demurrer, the demurrer was thus impliedly sustained. The amendment to the petition could not have been permitted without at the same time having in effect disposed of the demurrer. Upon the whole case, we can see no such objections to the proceedings as require us to reverse it; and the other judges concurring, the judgment will be affii'med.


text:
    Riddles, Plaintiff in Error, v. Aikin et al., Defendants in Error.
    1. Interest in the event of a suit -will not disqualify a witness; he must, to he rendered incompetent, he a person for whose benefit the suit is prosecuted or defended.
    2. An attorney at law is a competent witness in a cause in which he is engaged as attorney; he may testify as to privileged communications made to him by his client, if they are otherwise relevant, when called upon by Ms client so to do.
    3. Where the variance between the allegation in the pleading and the proof is not material, and the adverse party could not have been misled thereby to his prejudice, the court should allow an amendment without costs.

      Error to Greene Probate and Common Pleas Court.

    This was a suit, as originally instituted, by Thomas Riddles against John H. Aikin to recover the sum of two hundred and fifty dollars, alleged to be due and owing to plaintiff. Plaintiff set forth in his petition that defendant was administrator of the estate of Nancy Aikin ; that plaintiff purchased the distributive share of James P. Aikin in that estate ; that defendant had notice of this transfer; that the defendant, the administrator, with intent to cheat and defraud plaintiff, paid said distributive share to said James P. Aikin. The other distributees of the estate were afterwards made parties to the suit. At the trial the plaintiffdntroduced William C. Price as a witness, who testified that he, in March, 1861, as plaintiff’s attorney, gave defendant notice in the presence of plaintiff of the transfer to plaintiff of the distributive share of James P. Aikin. It also appeared that on March 3,1852, said John H. Aikin procured an allowance to himself as administrator of a credit for two hundred and fifty dollars paid to James P. Aikin as the latter’s distributive share. The court, by an instruction, excluded from the consideration of the jury the evidence of William C. Price as to the notice of transfer. It also refused to allow an amendment as set forth below in the opinion of the court.
    The plaintiff took a nonsuit, with leave, &c.
    Parsons, for plaintiff in error.'

      I. The court erred in refusing to allow the evidence of William 0. Price to go to the consideration of the jury; also in refusing the amendment sought. The instructions given were erroneous.
   Ewing, Judge,

delivered the opinion of the court.

The ground upon which the evidence of William 0. Price was excluded from the consideration of the jury does not appear from any thing in the record or bill of exceptions. He is no party to the action, nor does he appear to be a person for whose immediate benefit the action is prosecuted. If he is neither the one nor the other, although he may have an interest in the event of the action, he is not on that account an incompetent witness. Such interest would not disqualify, but only go to his credibility. But it does not even appear that he had any interest whatever. It is true he was an attorney, but it is not shown that he had any interest in the suit beyond what ordinarily arises from that relation. But be that as it may, the interest, if any he had, so far as we can see, was not such as to render him incompetent. That the testimony related to privileged communications — such as were made to the witness as an attorney — does not disqualify him, because the witness was introduced and examined by the client himself, (who was the plaintiff below,) and the seal which the law fixes upon such communications being thus removed by the client himself, the attorney became a competent witness. (R. C. 1855, p. 1578, tit. Witnesses.) The court erred, therefore, In excluding the testimony of W. C. Price from the jury.

We think the court erred also in refusing the amendment to the petition without the payment of costs. The amendment proposed was the date of the settlement of the defendant as administrator in the probate court. The allegation of the petition as to this matter is, that the defendant afterwards, to-wit, on the-day of-, 185 — , at a term of the court of probate aforesaid not his regular term, procured himself, as such administrator, to be credited with said receipt for said sum of two hundred and fifty dollars. On the trial, the bill of exceptions states that it was proved, among other things, by the record of settlement, that defendant got on settlement on the 3d of March, 1852, in the court of probate, a credit of two hundred and fifty dollars as the distributive interest of the said James P. Aikin of said estate. After this evidence had been given on the trial, the plaintiff asked leave to amend the petition by inserting the date of the settlement, which was refused by the court except on condition that the plaintiff should pay the costs of the term. Our practice act enacts that no variance between the allegation in the pleading and the proof shall be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defence upon the merits ; (R. C. 1855, p. 1253 ;) and that, when the variance between the allegation in the pleading and the proof is not material, the court may direct the_ facts to be found according to the evidence, or may order an- immediate amendment without costs. (Ib.)

The amendment proposed related to a fact of which the defendant, of course, had knowledge. As administrator, he knew when he made his settlements with the court; the fact of the settlement itself was averred in the petition ; and the defendant was apprised by the petition that the plaintiff would claim interest, on the amount- for which it is alleged he obtained credit, from the date of such settlement. Being thus fully advised of the ground of the plaintiff’s claim and the time from which interest would be claimed, the defendant must be presumed to have come prepared to contest it; and he could not therefore have been misled or surprised had the amendment asked been permitted. His defence upon the merits could not have been prejudiced or affected by such an, amendment; and we think the discretion of the court below was improperly exercised in refusing it except upon the terms sought to be imposed.

The judgment will be reversed and the cause remanded;

the other judges concurring.


author: Napton, Judge,

text:
    Jones, Appellant, v. Plummer et al., Respondents.
    1. The supreme court will not grant new trials on the ground that verdicts are against the weight of the evidence.

      Appeal from Greene Probate and Common Pleas Cowl.

      Parsons Sf Price, for appellant.

      Oliver Sf Ewing, for respondents.
   Napton, Judge,

delivered the opinion of the court.

The instructions given in this case were correct; and though it is not easy to see the grounds upon which the jury failed to give the plaintiff a verdict for at least nominal damages, yet as questions of this kind fall with peculiar propriety within the province of juries, and the court which tried the case has refused to interfere, we shall let the verdict stand.,

Judgment affirmed.


text:
    Nickerson, guardian of Martin, Respondent, v. Gilliam et al., Appellants.
    1. Where a promissory note is given to a guardian of an insane person as guardian, he may institute suit upon it in his own name.
    2. Where the guardian institutes suit upon such note in his own name, the defendant may plead by way of set-off a debt due him from the insane ward.

      Appeal from Chariton Circuit Court.

      Shackelford fy Tu/rner, for appellants.
    I. Martin’s indebtedness was a good set-off against the note sued on to his use. The admissibility of the set-off depends not upon who are the nominal parties to the suit, but upon who are the real parties in interest. (2 Parsons on Contr. 244, 251; 4 Wash. C. 0. 93; 7 Gush. 217.) The set-off being due to one of the defendants does not affect the case. (Kent v. Rogers, 24 Mo. 306.)
    Harris, for'respondent.
    I. The noté was the individual property of Nickerson; the words “as guardian” are merely■ descriptio persones. (19 Mo. 193; 5 Mart. N. S. 703; 5 Mari O. S. 201; 2 Wheat. 55.) If .the demands offered as set-off in the answer exceed the sum sued for, against whom would-the judgment go ? not against Nickerson, the plaintiff, because he does not owe these debts; not against Martin, for he is not a party to the action.
   Ewing, Judge,

delivered the opinion of the court.

This was an action on a promissory note executed by the defendants, who are the appellants, to the plaintiff “ as guardian” of the estate and person of one Martin, a person of unsound mind, for four hundred dollars. The answer admits the execution of the note, but pleads as set-off a promissory note of E. Martin to one of the defendants, and certain other debts'.transferred to said defendant by third persons alleged to be due from said Martin. The answer also avers that the suit is prosecuted for the use and benefit of Martin, and that the note was given for property of said ward, which had been sold by the guardian. ’The answer was stricken out, and judgment was rendered for the plaintiff for want of answer. A motion to set aside the judgment having been overruled, the defendants bring the cause to this court by appeal. • The question for our consideration is, was the proposed set-off admissible ?

It has been heretofore decided by this court that the words “ guardian,” &c., in a note were mere descriptio persones, and that the note or instrument was evidence of a debt due the person named as payee therein, and might be sued on by the legal representative of such pers.on; -in other words, that the payee of the note therein named as guardian had the title thereto notwithstanding these words. (Jeffries v. McLean, 12 Mo. 538; 19 ib. 195.)

There is no doubt, according to these decisions, that the plaintiff in the ease at bar was the legal owner of the note on which the suit is founded, and was the proper party to sue. But if the ward was the party really and beneficially interested, and the suit is prosecuted for his benefit, as the defendants allege in their answer, was it not admissible for him to prove this, and set off a debt which the ward was owing him ? Why not allow demands, which are really mutual as between the ward and defendants, to be adjusted in the same suit, although the debt sued for is nominally due to the plaintiff as guardian ? Cases may be supposed where a contrary rule would work hardship to the sureties of the guardian, as, for instance, where the guardian might be insolvent. The ward would have indemnity in the bond of his guardian, it is true; but the latter would be allowed to pocket the money of his ward, for which the sureties would be responsible — a hardship that could be prevented by compelling the party beneficially interested to submit to a set-off of demands against him by pleading them against the nominal plaintiff. If the state of the accounts between the guardian and his ward was such as to make the ward the debtor instead of the creditor of his guardian, I presume he would be allowed to allege this in his replication to the answer and prove it and thus prevent any hardship to the guardian. It is always admissible in an action by or against a trustee to plead a set-off of money due to or from the cestui que trust. (1 T. R. 622.) It is made the duty of the guardian to prosecute and defend all actions instituted by or against his insane ward. His relation to the ward is a fiduciary one, and he is to all intents and purposes a trustee, having, subject to the supervision of the courts, the entire control and management of his ward’s estate. Now, although the statement in the note of the fiduciary character of the plaintiff is not conclusive evidence of the fact, or that a trust attaches with respect to the note, yet the plaintiff admits the fact of guardianship ; and if the defendant can show that the transaction upon which the suit is founded was one in which the ward had the beneficial interest, as that the note was given, for example, for property of the ward, as the answer states, why may not the defendant have the benefit of his set-off without being'driven to another action to recover it, when the result would have been the same ? In Ward v. Martin, 3 Mo. 19, it was held that a set-off was admissible under circumstances similar to those in the case before us. In that case the defendant was permitted to prove that the suit was for the benefit of a third person, to whom the beneficial interest in the note (which was the foundation of the suit) belonged at the time suit was brought, and that such third person was indebted to the defendant Ward in a much larger sum than the principal and interest of the note. It was held that it was competent for the defendant to avail himself of the equitable matter attempted to be proved in avoidance of the recovery which was sought against him.

The judgment will be reversed and remanded,

the other judges concurring.


text:
    Halyard, Appellant, v. Dechelman, Respondent.

      lJ A watchmaker who receives a watch to repair is hound to use ordinary 1 diligence in its safe-keeping; if the watch while in his custody be stolen J through his negligence he will be liable.} A demand for the watch by the bailor would not in such case be necessary to entitle him to sue.

      Appeal from Weston Court of Common Pleas.

    This was an action to recover damages for the loss of a watch alleged to have been left with, the defendant, a watchmaker and jeweller, for repairs. Plaintiff alleged that the watch, through the carelessness and negligence of the defendant, was lost, destroyed or stolen. The defendant in answer put in issue the ownership of the watch; admitted he had received a watch for repairs. from a son of plaintiff, and alleges that his store was burglariously entered and the watch stolen, with a number of others belonging to defendant, and without negligence on his part. Evidence was adduced showing the manner in which the watches were kept and the facts connected with the entry of the store and the stealing of the watch of plaintiff. The court,’ among other instructions, gave the following : “ 1. The plaintiff is not entitled to recover without averring and proving a demand and a tender of the amount of repairs.”
    Plaintiff took a nonsuit, with leave, &c.

      J. N. Sf C. F. Burnes, for appellant.
    I. No demand was necessary. (Ross v. Clark, 27 Mo. 550.) There is no issue in the pleadings as to the repairs. The defendant neither alleges nor proves that he had made any repairs.

      Doniphan Sf Lawson, for respondent.
   Scott, Judge,

delivered the opinion of the court.

i A watchmaker, who receives a watch to repair for hire, is pound to use ordinary diligence for the safe keeping of the |vatch left with him for that purpose. Ordinary diligence is |hat degree of care in the preservation of a thing which a ¡prudent father of a family would use for the safe keeping of :it if it was his own. (Stopy on Bailments, § 429, 398.)

£ The law compels no mañ to do a vain and nugatory thing. |As the watch had been stolen and never regained, a demand |)f it would have been an act of folly. t It did not appear fthat any sum for repairs was due; and if there had been, it would have been subject to the same law as the watch, being payable or not as the watchmaker was guilty or not- of the want of ordinary diligence.

Reversed and remanded.

The other judges concur.


author: NaptoN, Judge,

text:
    Gott, Respondent, v. Williams et al., Appellants.
    1. From the date of the delivery of an execution issued by a justice of the peace to the constable, it is a lien on the personal property of the defendant “ found within the limits within which the constable or other officer can execute the process.” The lien commences only upon such delivery. (R. C. 1855, p. 964, j 5.)
    2. Where a judgment is rendered by a justice of the peace of one township and the defendant resides in another, and the execution issued is directed to the constable of the township in which the judgment is rendered, the lien of the execution will be coextensive with the county. (R. C. 1865, p. 964, § 6.)
    3. The officer receiving an execution from a justice of the peace should endorse thereon the time of its receipt. The docket of the justice can not be received in evidence to show the date of the receipt of the execution by the constable.
    4. The fact that the plaintiff in a suit has engaged to pay over to another the sum sued for when recovered does not render such person an incompetent witness in behalf of the plaintiff as being the person for whose benefit the suit is prosecuted.

      Appeal from Greene Circuit Court.

    It is sufficient to state, in addition to the facts stated in the opinion below, that Canefox stated on cross-examination that he agreed with Gott that he would pay back the purchase money of the horse, and that Gott was to commence this action and prosecute it for the benefit of Canefox; that he (Canefox) was to pay all costs that might accrue, and have whatever might be recovere'd; that he afterwards did pay back the said purchase money. The following is the instruction alluded to in the opinion of the court: “ 1. If the jury believe from the evidence that Forbes as constable took out of possession of plaintiff a horse and sold him at the instance of Williams, they must find for plaintiff as against Williams the value of the horse in the way of damages.

      Waddell Sf Orr, for appellants.
    I. The court erred in refusing to exclude from the consideration of the jury the testimony of Canefox. He was the real party in interest. The court also erred in refusing ta permit defendants to read to the jury the transcript of the docket of the justice. ■ (25 Mo. 334.) The horse when bought of Goodrich was subject to the lien of the execution. The court erred in refusing the instructions asked by the defendants.

      Parsons Sf Price, for respondent.
    I. Canefox was a competent witness. The transcript was properly excluded. It was not properly authenticated. The instruction given for the plaintiff, taken in connection with those given for defendant, properly presented the law of the case to the jury. There was no evidence to show that there was a lien upon the horse at the time of the private sale by Goodrich.
   NaptoN, Judge,

delivered the opinion of the court.

In this case the defendant Williams had obtained a judgment before a justice of the peace in Porter township, of Greene county, against Goodrich and Ricketts, the former of whom lived in Campbell township of the same county. The execution was issued on the 30th of June, 1857, and directed to the defendant Forbes, constable of Porter township. The execution was renewed on the 12th of September, and on the 8th of December the constable levied on a horse, then in the possession of Gott, the plaintiff. The horse had been purchased by Gott of one Canefox, who had bought him of Goodrich, defendant in the execution, about the last of August of the same year.

One question presented by the instructions asked by the defendant is, whether the writ was a lien from the date of its teste. The decision of the court on this point was in accordance with what we understand to be the plain implication of our present statute on this subject. The statute directs the officer to endorse on the writ the time of its receipt, and declares that, from the time of its delivery to the constable, it shall be a lien on the personal property of the defendant in the execution “ found within the limits within which the constable or other officer can execute the process.” (R. C. 1855, p. 964.) Whatever may have been the common law relative to the lien of executions, this statutory provision clearly restricts the period of its commencement to the delivery of the writ to the officer, without regard to the period when it was issued. The refusal of the circuit court to give the instruction which the defendant asked, declaring the law to be that “ during the running of the writ” the execution was a lien, was therefore proper..

Another question presented in a case of this kind, where the judgment is obtained in one township and the defendant resides in another is, whether the lieji reaches the property of the defendant in the township where he lives, or only takes effect from the levy. The statute declares the lien to reach all the personal property of the defendant found “within the limits within which the constable or other officer can execute the process.” Where the defendant lives in one township, 'and the plaintiff in another, or where there are two defendants living in different townships, the suit may be brought in the township where the plaintiff resides, if the defendants or either of them be found therein; and in such cases it is at the option of the plaintiff, who obtains judgment, to have his execution directed to the constable of the township where the judgment is rendered, or to the constable of the township where the defendant resides or has property. In the first case, the officer may execute the writ throughout the county. (R. C. 1855, p. 964, § 6.) The lien in such cases would be co-extensive with the limit of the officer’s jurisdiction, and would therefore reach any personal property of the defendant within the county, after the delivery of the writ into the hands of the officer.

In this case there was no proof as to the time when the execution came into the hands of the constable. There was no endorsement on the execution as the law requires. The docket of the justice was offered with a view to show the time when the execution came to the hands of the constable, but this was excluded. It is not material whether the exclusion was proper or not, since had it been introduced it could not have established the fact sought to be proved by it, nor was it any evidence of it. The statute makes it the duty of the constable to endorse on the back of an execution the time of its receipt. It is no part of the duty of the justice, even if he happened to have a personal knowledge of the time when the writ reached the officer’s hands. A statement, therefore, by the justice, in his docket, upon this subject, is no official act, and is entitled to no weight as a piece of evidence. The constable, having failed to state the fact in his return, might have been permitted to amend his return ; but this was not offered, and the docket of the justice was no evidence on this point, whether properly authenticated or not.

We think Canefox was a competent witness. His testimony shows that it was not his intent to extinguish the claim of Gott, the plaintiff, but merely to save him from all risk. The trespass, if any, was committed on Gott and whilst he owned the horse. He was the proper person to sue. Gane-fox would have been responsible over to him for the value of the horse in the event the suit failed. This responsibility Canefox anticipated by handing over to plaintiff the purchase money, but it would not be reasonable to suppose it was his intention to take an assignment of the right of action for the trespass.

The first instruction given for the plaintiff in this case is manifestly wrong. It leaves out of view altogether the question of property in Goodrich, and the lien of the execution from the time it came into the hands of the constable. We shall remand the case for a new trial. Judgment reversed and remanded ;

the other judges concur.


text:
    Carter, Appellant, v. McClintock, Respondent.
    1. Delivery is necessary to the complete execution of a promissory note; if the payee obtain posssession thereof by fraud he can not maintain an action thereon.

      Appeal from Buchanan Circuit Court.

    This was an action on a promissory n'ote for $663.33. The deféndant in his answer admitted the “execution” of the note set out in the petition, but set tip-by way of defence that the same was proved by falsehood’and fraud. He states that in June, 1857, he entered into a “ conditional contract” with the plaintiff, by which defendant, and one Murray were to become the purchasers of a certain jjiece of ground at the price of $3,000, $1,000 to be paid down, the remainder in three equal instalments of six, twelve and' eighteen months; that it was expressly understood'that the contract was to take éffect and become binding only in case Murray would become a party with defendant in the contract and become jointly bound for the purchase money, but in case Murray should refuse to take half the land and become jointly bound for the purchase money the contract was to be considered null and void; that with this understanding defendant deposited $1,000 with plaintiff, and at the same time three promissory-notes were drawn up for the signatures of defendant and Murray, also a bond conditioned for the conveyance of said land to said Murray and defendant; that defendant then signed the notes, and they, with the bond, were placed in defendant’s hands in order that he might submit them to’ Murray; that he did submit the notes and bond to Murray for .approval or rejection ; that Murray refused to ratify or approve said contract, or become a party thereto, or sign said notes; that shortly after defendant notified plaintiff of this decision and demanded the return of the $1,000 ; that defendant retained said notes in his possession until some time in November, 1857; that in a conversation between plaintiff and defendant in relation to the above agreement plaintiff asked defendant the privilege of looking at the notes; that defendant, not suspecting any fraudulent design, handed the notes to him for inspection; that’ plaintiff having got them in his possession put them in his pocket and left defendant, and refused to return the notes or the $1,000, although demanded by the defendant; that the note sued on is one of those notes so obtained by plaintiff; that the possession was procured by fraud.
    At the trial evidence was adduced showing that plaintiff obtained possession of the notes in the manner stated in the answer. A letter written by one C. E. Kemp, in behalf of plaintiff, was admitted in evidence in behalf of defendant. Kemp stated that he wrote the letter at the request of plaintiff ; that he was acting as his clerk and agent; that he had embodied in the letter the ideas he had derived in relation to the sale of the land and the execution of the notes from conversations with Carter, the plaintiff; that at the time the letter was written Carter was in St. Louis, and had previously to leaving requested witness to attend to the matter. The letter is as follows: “ St. Joseph, Mo., October 2, 1857. Mr. Joseph McClintock: Dear Sir — This will certify that the bearer, Mr. Leopold, is authorized to close the trade between W. M. Carter and McClintock and Murray, being a sale of five acres of land, for the sum of $3,000, on which purchase you have paid $1,000 cash, and for the balance, $2,000, per agreement, you were to execute your joint promissory notes for $1,000 cash, one of said notes being payable six months after date, and the other payable twelve months after date from the date of the purchase of said land. Mr. Carter is at present absent at St. Louis and has requested me to attend to this matter for him, and have no doubt but that you will fulfill any contract made with him in regard to this transaction. Yours, very respectfully, [signed] W. C. Carter, by C. E. Kemp.” By the bond, which was given in evidence, three notes, of $663.83 each, were to be given.
    The court refused the following declarations of law asked by plaintiff; “ 2. There is no evidence offered in behalf of defendant to sustain his answer or entitle him to a verdict.” The following declarations of law asked by defendant were given: “ 1. If the purchase was made in the name of defendant and John D. Murray of the land in question, in consideration of which the note sued on was given, and the plaintiff refused to accept the note until the signature of said Murray was procured thereto, and that said Murray refused to sign the same, and plaintiff afterwards got possession of the note in question under pretence of examining the papers, and refused to redeliver the same to the defendant, then the law of the case is for defendant. 2. If the contract was not to be completed until Murray’s signature was procured, and that defendant by false representations got possession of said note knowing that the said Murray had failed to sign the same, then the law of this case is for.defendant. 3. If the plaintiff got possession of the note s'ued on under the pre-tence of looking at the same, and without the consent of plaintiff retained possession of the same, then he is not entitled to recover on the same. 4. The execution and delivery of the note by defendant and Murray was a part of the contract, and unless the same was executed by them and delivered to the plaintiff by defendant the law of the case is for the defendant.”
    The court found for defendant.

      H. M. 4* A. II. Tories, for appellant.
    I. The letter of Kemp was improperly admitted. Kemp’s had no authority to make admissions. He knew nothing about the contract. The declarations of law given were erroneous. The agreement alleged in the answer is entirely disproven. There is a fatal variance, and a total failure of proof: (R. C. 1855, p. 1285 ; 17 Mo. 585 ; 19 Mo. 30; 18 Mo. 403; 20 Mo. 229 ; 22 Mo. 27.) The' notes were delivered to Carter. He sent them by defendant to get Murray’s signature. Defendant has kept the bond, and may have it yet for all that appears.

      Gardenhire, for respondent.
    I.. The letter of Kemp was properly admitted. The declarations of law given were proper. (See 3 Johns. 534 ; 7 Johns. 470; 4 Call, 379; 4 Wheat.' 225 ; 1 Sumn. 218.) The notes were never delivered. The answer puts in issue the delivery. ■ ■
   Scott, Judge,

delivered tlie opinion of tbe court.

We see no grounds on which to place a reversal of this judgment. The letter written by the authorized agent of the plaintiff and at his request, although not dictated by the plaintiff, was evidence against him. It appears that he was, from conversations with the plaintiff, familiar with the subject about which he wrote, although he happened to fall into a mistake in stating the terms of the contract. But we do not see how the plaintiff was injured by the admission of the letter in evidence. He stands here claiming an advantage from the error into which the clerk was betrayed in describing the contract.

The written contract could only be resorted to in order to ascertain the understanding of the parties. We do not comprehend what is meant by the variance between the answer and the proof. Surely it is not founded on the allegation in the answer that the agreement was conditional, when the whole context of the answer shows that that word had not, nor was intended to have, any other sense than to show that the contract was not complete and had not been fully executed. The suit was on a note, and the answer set up the defence that the note had never been delivered; that the contingency, on which it was to be delivered — the entire fulfillment to the contract by all the parties to it — had not happened when the plaintiff, by fraud and falsehood, obtained possession of it. But it is said that the answer admits that the defendant executed the note. We can very well see how this happened. As the law required the answer to be sworn to, and as the defendant knew the signature to the note was his, he was unwilling to swear that he did not execute it, that is, did not sign it — not intending thereby to admit that the note was a complete instrument or had ever been delivered. The attorney might have been a little more choice in his language and avoided this nicety. But, for an objection like this, to subject a man to the payment of a large sum, under the circumstances of this case, would be an outrage upon justice.

It clearly appeared that the note sued on was one of those referred to in the answer ; and the facts of the answer being clearly proved, the declarations of law made by the court were correct, and those denied to the plaintiff were properly refused.

The other judges concurring, tíre judgment is affirmed.


text:
    Hursh, Respondent, v. Byers, Appellant.
    1. An innkeeper has a lien upon the goods of guests only, not upon the goods of persons hoarding with such innkeeper under a special contract.

      Appeal from, Greene .Circuit Court.

    This was an action commenced before a justice of the peace. An appeal was taken to the circuit court. The facts as they appeared in evidence are as follows : Plaintiff in 1858 kept a hotel in Iowa city, Iowa. One Mrs. Acor boarded with him. When Mrs. Acor was on the point"of leaving, the plaintiff presented her bill, and told her she could not remove her trunk from the room she occupied until the bill was paid. The defendant Byers, under these circumstances, promised plaintiff, if he would let Mrs. Acor have her baggage, that he would go her security for the payment, of the bill. Upon this promise plaintiff permitted Mrs. Acor to remove her trunk. Mrs. Acor had been a regular boarder at the hotel for two years, paying a stipulated sum per week for her board.' .The defendant asked the court to declare the law to be that “ if defendant promised or assumed to pay the debt of another person to the plaintiff, it is not binding upon the defendant unless such promise was put in writing and signed by him;” also “that innkeepers or‘boarding-house keepers have no lien on the baggage of their regular boarders for the general balance of their board bill; that when a person ceases to-be a traveler or wayfaring man, and becomes a boarder, such person ceases to be a guest in such a sense as to hold the innkeeper to bis peculiar liability, or to give him a lien on the baggage of such person.” The court refused so to declare and found for the plaintiff.

      Lindenbower, for appellant.
    I. Hotel keepers have no lien upon the baggage of boarders. The promise of defendant was within the statute of frauds.

      Parsons Sf Price, for respondent.
    I. The case is not within the statute of frauds. The plaintiff had a lien on the baggage. The agreement was in consideration of the release of this lien. This was a sufficient consideration. (2 Parsons on Contr. 306, note.)
   Scott, Judge,

delivered the opinion of the court.

Story says, if a person comes upon a special contract to board and sojourn at an inn, he is not in the sense of the law a guest, but he is deemed a boarder. (§ 477.) The law gives the innkeeper a lien on the goods of a guest, not of a boarder. (§ 476.) The plaintiff having no lien on his boarder’s goods, he had no right to retain them; consequently there was no consideration for the promise made by the defendant to pay the board for which this suit is brought.

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


text:
    Ridens, Respondent, v. Ridens, Appellant.
    1. If there be any evidence introduced tending to prove a fact relied upon by a party to a suit, it is error to refuse instructions putting that fact to the jury.

      Appeal from Wright Circuit Court.
    It is deemed unnecessary to set forth the facts more fully than they appear in the opinion of the court.

      -: — , for .appellant.

      Ediuards 8f Ewing, for respondent.
   NaptoN, Judge,

delivered the opinion of the court.

The record in this case shows the refusal of the court of all the-instructions asked by the, defendant based upon the hypothesis of a special contract between plaintiff and defendant. There was evidence of such a contract sufficient to justify the court to put the case to the jury on that ground, and let them pass upon the question. As the court refused to do thiá, the judgment must be .reversed and the case remanded.

Judge Ewing was of counsel and did not sit. Judge Scott concurs.


text:
    Beardslee et al., Appellants, v. Morgan, Respondent.
    1. If the bond filed by a plaintiff in an attachment suit be insufficient, he has a right to file another. (B. C. 1855, p. 242, § 9.)

      Appeal from Greene Circuit Court.

      Price, Poisons, Boyd Sf Price, for appellants.

      BarkerWilks 8f Hendrick, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This was a suit begun by attachment. " The attachment bond was signed by the attorney at law of the plaintiffs, for and in their behalf, without any special authority for that purpose. The name of the plaintiffs having been signed without authority, on that ground a motion was made to quash the attachment. Before the motion wás determined the plaintiffs appeared to file a sufficient bond; the court would not permit this,'but sustained the defendant’s motion.

The bond being deemed insufficient, the court, under the ninth section of the first article of the act concerning attachments, should have granted the plaintiffs’ motion, and allowed a new bond to be filed. (Tevis, Scott & Tevis v. Hughes, 10 Mo. 380.)

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


author: Soott, Judge,

text:
    Hansard, Plaintiff in Error, v. Reed, Defendant in Error.
    1. Where, in an action under the eighth article of the practice act of 1849, the plaintiff gives a return bond and receives the property sued for, and fails to prosecute the action with, effect, an assessment of the value of the - property and of damages for its detention may be made and judgment against the plaintiff rendered, as directed in sections eight and nine of the replevin act of 1845. Summary statutory proceedings may also be had under section nine of the eighth article of the practice act of 1849. The party may also, after the final determination of the suit, resort to his common law action on the return bond, and may recover full damages within the limit of the penalty, although no judgment may have been rendered for the return of the property or for damages.
    2. Where, in an action under the eighth article of the practice act of 1849, the plaintiff gave a return bond and received the property sued for, and the court sustained a demurrer to the petition, and gave judgment for costs against the plaintiff, no assessment of the value of the property or of damages for its detention being made, nor a return of the property awarded, and afterwards the court at the same term granted the plaintiff leave to amend his petition; held, that the grant of leave to amend impliedly set aside the judgment for costs against plaintiff and reinstated the cause; and that the cause being still undetermined it would be premature for the defendant to institute a suit on the return bond.

      Error to Callaway Circuit Cowrt.

    The facts sufficiently appear in the opinion of the court.

      Hardin 8f Hayden, for plaintiff in error.
    I. The only point raised in the court below and for decision here is as to the assessment of dámages upon the breach “ to prosecute the action with effect.” (See Berghoff v. Heckwolf, 26 Mo. 512; Morris on Replevin, 590 ; Brown v. Parker, 5 Blackf. 291; Rol van v. Stratton, 2 Bibb ; Gibbs v. Bartlett,'2 Watts & Serg. 29 ; Waterman y. Yea, 2 Wilson, 42; Perrean v. Beran, 5 Barn. & Cress. 284.) Any judgment wliicli is in its nature final is^all tliat the authorities require. ' There was a final judgment in this case. (See Palmer y. Crane, 8 Mo. 619; Smith y. Wilson, 10 Mo. 8Ó0.)
    The court committed error in excluding the evidence by the plaintiff in reference to the value of the slave Milly and the value of- her hire which constituted the essential demand and cause of action of plaintiff. (R. C. 1855, p. 1245, § 11, p. 1246, § 19.) The court committed error in refusing the instructions asked for plaintiff, and .in giving the instructions as prepared and given by the court. (R. C. 1855, p. 649, § 7.) '

      Gardenhire 8f Boulware, for defendant in error.
    I. No final judgment appearing upon the record, the cause must be dismissed. (R. C. 1855, .p. 1294, § 1; 3 Mo. 238; 5 Mo. 62, .64; 8 Mo. 619, 622; 9 Mo. 179; 20 Mo. 432.) There was no error in excluding the evidence of the value and hire of the negro, nor in refusing and giving instructions. (R. C. 1855, p. 1243, § 3.) Return of the negro was not adjudged, and a failure to return was no breach of the bond. The terms of the obligation are prescribed by statute and are different from those prescribed by the third section of the act of 1849, under which Berghoff v. Heck-wolf, 26 Mo. 511, was decided. The assessment of the value of the property and damages is important; (R. C. 1855, p. 1245, § 11;) and the judgment goes against the plaintiff and his securities. (R. C. 1855, p. 1245, § 12.) The writ of retwmo habendo is revived. (R. C. 1855, p. 1246, § 18.)
   Soott, Judge,

delivered the opinion-of'the court.

This was an action on a bond given in a suit for the claim and delivery of personal property. The suit on which the bond Was taken was begun under the act of 1849, before the code of 1855 went into operation. A demurrer having been sustained to the petition filed in the suit on which the bond was taken, there was a judgment for costs against the plaintiff, but no assessment of the value of the proporty or of damages for its detention; nor was any return of the property awarded. After this judgment, and during the same term, the court granted the plaintiff leave to amend his petition. From the record of the case, as it is in the bill of exceptions, it does not appear that any further steps were .taken in it — there being no return of the property awarded, nor its equivalent in damages, nor any damages awarded for its detention. This suit was commenced on the bond to recover the value of the property and damages for its detention. The court below held that the plaintiff in this suit on the bond could not recover the value of the property delivered to tlie defendant.in the action in which he was plaintiff and in which he executed the bond, the foundation of this suit.

The defendant was mistaken in supposing the bond on which this suit is brought was executed under the code of 1855. It was made before that code went into operation, so that this case does not differ from that of Berghoff v. Heckwolf, 26 Mo. 511, and would be decided by it but for the reason that this suit was brought prematurely — the suit on which the bond, the foundation of this action, was given not having been finally disposed of when this proceeding was commenced. As the court gave the plaintiff leave to amend his petition, such a step on the part of the court impliedly set aside the judgment against the plaintiff} and reinstated the cause on the docket, where it is still pending. In the case of Lane v. Kingsbury, 11 Mo. 408, this court held that as the new trial could not have been granted but by setting aside the former judgment, the granting of the new trial impliedly set aside that judgment.

As the effect of reversing this judgment on the ground on which it is placed is to declare the first, suit still pending, the plaintiff in this action can defend that suit, and if he succeeds he can proceed in the manner pointed out in the act of 1849, as it is explained in the case of Collins v. Hough, 26 Mo. 152; or when the cause is finally disposed of he may sue on the bond. The other judges concurring, the judgment will be reversed.


text:
    The State, Respondent, v. Cox, Appellant.
    1. An indictment charging that the defendant “ on, &c., at, &c., did unlawfully sell intoxicating liquors in less quantity than one gallon without then and there having a dram-shop keeper’s license, or any other authority,” &c., is insufficient; the indictment should set forth the particular acts constituting the violation of the law upon which the indictment is framed.

      Appeal from Dade Circuit Court.

    -, for appellant.

      Knott, (attorney general,) for the átate.
    I. It is not necessary to set forth in the indictment the particular kind of liquor sold. (6 Blackf. 105, 554; 28 Pick. 275.)
   Scott, Judge,

delivered the opinion of-the court.

The statute enacts that no person shall directly or indirectly sell intoxicating liquors in any quantity less than one gallon without taking out a license as a dram-shop keeper. The defendant was indicted under this section, and it is charged that on, &c., at, &c., he did unlawfully sell intoxicating liquors, in less quantity than one gallon, without then and there having a dram shop keeper’s license, or any other authority, &c. ■ We have gone a great way in endeavoring to uphold the proceedings in criminal cases, but we see clearly that the farther we go the further we are required to go. A case that barely escapes reversal is considered as establishing a principle, and it is used as a precedent by which we are required to make some still wider departure from the requirements of the law. There is" no policy in this. The sooner the circuit attorneys are taught that they must have some regard to law in drawing their indictments the better it will be for the state, who will thereby save thousands in costs. The great liberality in the courts in this matter only begets carelessness and inattention, which result in the escape of offenders, the increase of appeals and delays, and the great multiplication of unnecessary costs.

The rule that in describing an offence it is sufficient to use the words of the statute creating it is greatly misapplied and perverted when called in support of the indictment in the record before us. No one ever supposed that it meant to sanction an indictment charging one generally with the offence specified'in the statute, without containing any particular act showing that the general provision has been violated. The rule means that the act, charged in the indictment as violating the general law, must be described by the words of the statute; as if the law forbade one to strike another, it would not do to charge in an indictment under it, that A. did beat C.; or if the law forbade any one to sell any particular thing, an indictment under it, that A. disposed of for money the thing prohibited, would be bad. The objection to this indictment is that it charges no particular act showing by its description in the words of the act that the general provision had been violated. What would be thought of an indictment charging one generally with the felonious stealing of horses ? The selling of a gallon of liquor at one time, to be taken away or used in less quantities at the will of the purchaser, was an evasion of the law not to be tolerated.

Judges Napton and Ewing concurring,

judgment will be reversed.


text:
    The State, Defendant in Error, v. Kelly, Plaintiff in Error.
    1. State v. Cox, ante, p. 475, affirmed.

      Error to McDonald Circuit Court.

    Payne, for plaintiff in error.
    Knott, (attorney general,) for the State.
   Scott, Judge,

delivered the opinion of the court.

For opinion, see the case of Cox v. State, decided at this term. Judgment reversed;

Judges Napton and Ewing concurring.


author: EwiNG, Judge,

text:
    Thompson et al., Appellants, v. Mosely, Respondent.
    1. A court- may, on such terms as may be proper, amend a pleading by striking out the name of a party. If the ends pf justice require it, it must permit such amendment.
    - Appeal from Andrew Circuit Cowrt.

    This, as originally instituted, was a suit against Robert C. Mosely by William N. Thompson and eleven others, including Sinclair K. Miller and Benjamin E. McCart. The plaintiffs alleged that on the 6th March, 1858, they became securities of defendant Mosely and one A. M. Mitchell on five several promissory notes for $1,000 each, bearing date said March 6, 1858, and payable sis months after date to one John Gooding; that said Mosely and Mitchell failing to pay said notes, the plaintiffs had the same tó pay to the parties to whom they were assigned. They prayed judgment for the amount of the notes. The court sustained a demurrer to this petition, and gave leave to amend. Afterwards an amended petition was filed. In the title Of this petition all the plaintiffs’ names are set forth. The body of the petition is substantially as follows: “ Plaintiffs, Sinclair K. Miller and Benjamin N. McCart, by leave of court had for said purpose for an amended petition in the above entitled cause, state that “ on the 6th of March, 1858, they were partners; that on said day at the request of defendant Mosely they as partners, together with others, signed and executed five several promissory notes for $1,000 each; which were dated March 6,1858, and were payable to John Gooding or order six months after date, and were executed by A. M. Mitchell and said Mosely as principals, and were signed by the plaintiffs Miller and McCart as the securities of said Mitchell and Mosely; that Mitchell and Mosely failed to pay said notes at maturity ; that the plaintiffs Miller and McCart, still being partners, were compelled to and did pay of the amount of said notes the sum of $455.55 to the legal holders of said notes ; that neither the defendant Mosely nor said Mitchell has repaid said sum of money to plaintiffs or any part thereof. Plaintiffs pray judgment for said sum with interest.
    The action of the court upon this petition is set forth below in the opinion of the court.

      Vories Sf Vories, for appellants.
    I. The court should have allowed the amendment. The plaintiffs Miller and McCart had a right to strike out any part of their petition independent of any leave or discretion of the court. (See 16 Mo. 225.) The defendant could not have been injured by the amendment.

      Woodson, Hall <$/• Loan, for respondent.
    I. The motion to strike out a portion of the plaintiffs’ names was properly overruled. The amended petition set out a new and independent cause of action. By striking out those names, there would have been pending a new suit. To allow this would not be “ in furtherance of justice especially where a large amount of property had been attached and sold. If the motion was properly overruled, the demurrer was rightly sustained.
   EwiNG, Judge,

delivered the opinion of the court.

The questions in this case arise upon the action of the court in overruling appellants’ motion to strike out all the names of the parties plaintiff except Miller and McCart; and in sustaining the demurrer to the amended petition.

Under the amended petition filed by the plaintiffs — who are appellants — it is very evident that the only real parties to the action, or the only parties who show any cause of action against the defendants, are the plaintiffs Miller and McCart. The petition does not pretend to allege any claim or cause of action in favor of the other parties ; and their only connection with the suit is that of simply being named as plaintiffs in entitling the cause. Had the action been brought in this way originally, we think there could be no doubt that on the trial, or even after judgment, the names of these parties could have been stricken out; (R. 0.1855, p. 1258, § 3, 6;) and it would be an improper exercise of discretion to refuse it. They had no interest whatever in the suit in the shape it assumed in the amended petition, no claim against the defendants, and no concern in the- prosecution of the suit of Miller and MeCart. It could not, therefore, be pretended that such an amendment as was proposed by the motion could have changed substantially or materially the claim of the plaintiff, or have affected or prejudiced the defence in any way. And if such an amendment is allowable on the trial, or even after judgment, a fortiori, it would seem to be before trial, and before any answer is filed.

The court may, at any time before final judgment, in furtherance of justice, and on such terms as may be proper, amend any record, pleading, process, entry, return, or other proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a'party, or a mistake in any other respect, or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defence, by conforming the pleading or proceeding to the facts proved: (R. C. 1855, p. 1253, § 3.) In a corresponding provision of the New York code it has been decided that the restriction as to changing the cause of action or defence in matter of substance applies only to cases where the party seeks to amend his pleadings after trial. (Beardsly v. Storer, 7 Howard, 295; 11 ib. 170.) But the amendment in the-case before us was not proposed after trial; and if it had been, the'amendment, not being such as changed substantially the cause of action, should have been permitted even at that stage of the proceedings.

The causes of demurrer under the practice act are, first, that the court has no jurisdiction of the person of the defendant or the subject of the action; or second, that the plaintiff has not legal capacity to sxie; or third, that there is another action pending between the same parties for the same cause in this state; or fourth, that there is a defect of parties plaintiff; or fifth, that several causes of action have been improperly united ; or sixth, that the petition does not state facts sufficient to constitute a cause of action; or seventh, that a party plaintiff or defendant is not a necessary party 4o a complete determination of the action. The causes assigned in the demurrer to the amended petition are, first, that the petition did not show the plaintiffs entitled to any judgment or other relief; second, that it does not show any joint right of action in the plaintiffs against the defendant; third, that the petition shows the demand against the defendant to be several and not joint; and fourth, that there is a misjoinder of parties plaintiff.

It is very obvious that there is but one ground upon which a demurrer to the amended petition could have been sustained, namely, that there were parties plaintiffs who were not necessary parties to a complete determination of the action. Rut this was the very objection the motion to strike out all the plaintiffs except Miller and McCart proposed to obviate; and therefore the motion should have been sustained, and the amendment allowed. Why overrule the motion and sustain the demurrer for the same objection that the motion was intended to git rid of, if, indeed, this- objection of unnecessary parties was embraced in any of the causes assigned in the demurrer ? If it was not, then the demurrer should have been overruled.

The judgment is reversed and the cause remanded;

the other judges concurring.


text:
    Blair, Respondent, v. Corby, Appellant.
    1. The admission of testimony that is merely irrelevant is no ground for the reversal of a judgment unless the testimony tends to mislead or prejudice the jury.
    2. Questions of variance should he raised at the trial, so that an opportunity for amendments may he afforded.

      3. Where a person contracts with a railroad company to grade and construct a division of the road, the company to retain a certain percentage as a security for the completion of the entire -work, and the contractor sublets a portion of the division to another, and it is agreed between them that the contractor shall retain a certain percentage as a security for the completion of the subcontract, and the subcontractor completes Ms portion, and it is received, he may recover the sum agreed upon, including the percentage, of the contractor, although the latter may have failed to entitle himself to his percentage as against the railroad company.

      Appeal from Buchcman Cowl of Common Pleas.

    This was an action to recover the sum of 13,195.89 alleged to be due plaintiff as a balance for work and labor done and materials furnished in constructing and completing certain work upon the Hannibal and‘St. Joseph Railroad under a contract entered into between plaintiff and defendant in April, 1856. The defendant was a contractor under John Duff & Co. The plaintiff was a subcontractor under defendant. The petition set forth substantially that by said contract plaintiff bound himslf to construct and in every respect to complete the clearing, grubbing, masonry and trestle-work and piling, including the furnishing of materials and of all other things requisite and necessary to complete the roadbed of that portion of the Hannibal and St. Joseph Railroad known as section Ten, extending from station 580 to station 641; also the masonry on section Eight, on the west division of said road,. at certain specified prices; that for said work and materials defendant was bound by said contract to pay plaintiff eighty-five per cent, in current funds, or in such money as shall be paid defendant by John Duff & Co., upon the estimates made by the engineer in charge of the work, and in ten days from the receipt of the corresponding monthly estimate to said defendant from John Duff & Co., fifteen per cent, thereof being retained as a security for the completion of the work and until the same is fully performed, accepted and finally estimated by the engineer, when the defendant, after the receipt of said retained percentage from John Duff & Co., will, within thirty days thereafter, pay plaintiff said amount retained. And said contract contained the further stipulation and provision, that whenever, in the opinion of said engineer, the contract shall have been wholly completed by the plaintiff, the defendant would pay him, and the plaintiff agreed to receive for the performance of said work in full compensation for materials furnished and work done, &c., the prices before specified in said contract ; that said work should be executed under the direction and constant supervision of the engineer of the company; that the quantities and amounts of the several kinds of work performed are to be determined by the measurements and calculations of said engineer, which shall be final and conclusive. Plaintiff alleges that he has duly and fully complied with and performed the entire stipulations and conditions of said contract to be by him performed; that he has fully and entirely completed all the work by him to be per-' formed; that said work had been accepted and received and finally estimated by the engineer in charge; that John Duff & Co., more than thirty days before the commencement of this suit, paid to defendant the full amount due upon such final estimate ; that defendant had a contract with John Duff & Co. by which he bound himself to complete for them the first division west of the Hannibal and St. Joseph Pailroad ready for the ties and track; that before the commencement of this suit the defendant had failed to comply with his said contract, and had forfeited the same and also the fifteen per cent, retained; that John Duff & Co., without completing said first division, surrendered said road into the hands of the company, which has ever since been using and enjoying the work done by plaintiff. Plaintiff also claims compensation for extra work, and asks judgment for $8,195.89, including $2,169.57 for the fifteen per cent, retained.
    The following are the instructions given by the court at the instance of the plaintiff, and referred to below in the opinion of the court: “ 6. If the jury believe from the evidence that plaintiff has fully completed and performed the work specified in said petition and contract in evidence, and that before the commencement of this suit the same had been finally estimated and received by the engineer of the Hannibal and St. Joseph Railroad Company, or by his assistant or assistants, duly appointed, who were recognized by the defendant as such, and that defendant forfeited his contract with John Duff & Co., then plaintiff is entitled to recover in this action the full value of his work including said retained percentage, unless the same has been paid. 8. Although the jury may believe from the evidence that plaintiff did not fully complete his work by January 1, 1857, yet such failure coirld not forfeit his contract unless defendant took such steps to forfeit the same as is required by the third section of the contract read in evidence, by giving notice, &c.; and there is no evidence that defendant took such steps or made such attempt.”
    The following instructions asked by . the defendant were refused : “ 1. By the terms of the contract between plaintiff and defendant read in evidence to the jury, the plaintiff Blair was required and bound to complete tjie work specified in said contract before the 2d day of Januaiy, 1857 ; and unless the jury believe from the evidence that said work was completed at that time, they will find for the defendant. 2. Unless they believe from the evidence that the work specified in said contract to be performed by plaintiff was completed, accepted and finally estimated by the engineer of the Hannibal and St. Joseph Railroad Company before the commencement of this suit, which was commenced on the 4th day of February, 1858, they will find for the defendant. 4. Unless the jury believe from the evidence that the work specified in said contract to be performed by plaintiff -was prior to the commencement of this suit completed, accepted and finally estimated by the engineer of the Hannibal and St. Joseph Railroad Company, and that said work was also accepted by John Duff & Co., they will find for defendant. 11. The fifteen per cent, mentioned in the contract between John Duff & Co. and the defendant as stipulated damages in case of the forfeiture of the contract is a penalty out of which John Duff & Go. could have the right to recover such damages as they sustained by reason of such forfeiture. 12. There is no evidence of a forfeiture of defendant’s contract with John Duff & Co. or of the retained fifteen per cent. 16. The final estimates on which plaintiff under the contract was entitled to the retained percentage was not the final estimate of the sections mentioned in the petition, but the final estimate of the whole division No. 1 west of the Hannibal and St. Joseph Railroad.”
    There was a verdict for plaintiff.

      Hall 8f Loam,, for appellant.
    I. The accounts read in evidence should have been excluded. They had no tendency to prove any issue made in the pleadings. They were incompetent for any purpose. The sixth instruction should have been refused. It submits to the jury a question of law, the forfeiture of the contract with John Duff & Co. It authorized a recovery on a case different from the one made in the pleadings. The petition alleges that Duff & Co. paid defendant the full amount due upon the final estimate as well upon the monthly estimates. The instruction authorizes a recovery if the jury believe that defendant forfeited, his contract. The eighth instruction should have been refused. The plaintiff alleged a performance of the contract, which is denied in the answer; yet in this instruction the jury are required, notwithstanding they find this issue for the defendant, to find their verdict for the defendant, unless they also find that the defendant toot the steps necessary to forfeit the contract. The court should have given the first instruction asked by defendant. The plaintiff was required to complete the contract before the 1st of February, 1857. The second instruction should have been given; so the fourth instruction. By the contract, the work was to be at the risk of the plaintiff until it was completed, accepted and finally estimated, and also accepted by John Duff & Co. The eleventh and twelfth instructions should have been given. The fifteen per cent, retained was a penalty and not liquidated damages. (11 Mo. 271; 8 Mo. 467.) The sixteenth instruction should have been granted. The fifteen per cent, was by the terms of the contract with Duff & Co. to be retained as a security for the whole work, and John Duff & Co. were not bound to pay it until the whole work on division No. 1 was completed, accepted and finally estimated.

      Tories 8f Tories, for respondent.
    I. The court committed no error in admitting the evidence objected to by defendant. The court committed no error in giving or refusing instructions. The recovery was for the fifteen per cent. only. The question whether this fifteen per cent, was due was properly submitted to the jury by the instructions. If Corby failed to receive -the fifteen per cent, by his own fault in failing to complete other parts of the work to be done by him, by which he forfeited said fifteen per cent., he became liable to pay the deferred payment to plaintiff for the work completed by him. Defendant could not take advantage of his own wrong. The evidence tends to show that defendant received the fifteen per cent, on the work done by plaintiff. It was payable when the plaintiff completed his contract.
   Scott, Judge,

delivered the opinion, of the court.

As this case only involves questions as to the admissibility of evidence and the propriety of instructions given and refused, it will be sufficient to notice the points made in the appellant’s brief, who was defendant below.

The first error complained of by the appellant is the admission in evidence of sundry accounts between him and the plaintiff in relation to the subject of the suit. As the accounts were made out by the appellant himself we do not see on what grounds they can be regarded as inadmissible against him. They contained admissions which were competent evidence for the plaintiff. A judgment will not be reversed for the admission of testimony which is merely irrelevant. Unless the evidence tends to mislead or prejudice the minds of the jury, the fact of its being merely irrelevant is no ground for a writ of error or appeal.

The next error alleged is the giving of the sixth instruction for the plaintiff. It is objected to this instruction that it submitted a question of law to the jury, and that it warrants a recovery on a ground not stated in the petition. There was no question in the [case] as to what facts would constitute a forfeiture; the only matter in dispute was the fact of a forfeiture. We do not understand the petition as only alleging that Duff & Co. actually paid the sum due on the final estimate, but also that it was in effect paid, as the appellant had by his conduct forfeited his right to receive it. Under this view of the petition, we see no error in the instruction. The petition is not as intelligible as it might have been made, but it does not appear that any attempt was made to make it plainer.

The eighth instruction given for the plaintiff is next alleged to be erroneous. That instruction certainly contains a legal proposition. We do not understand it as raising the question, whether, in an action on a special contract to be performed within a given time, under an allegation that such contract has been performed, it would be sufficient that the contract had been performed but not within the stipulated period. A variance between the petition and proof must be made at the trial, so as to enable the plaintiff to amend. We do not see how the question of a variance can bo raised in this court for the first time in a case like this. There may be cases where such a variance might affect the merits of the judgment, but this is not 'one of them.

Complaint is made that the court refused to give the first instruction asked by the appellant. We are of the opinion that the refusal did not prejudice the appellant. The contract was read in evidence without objection. No objection on the ground of variance was made at the time. The party, then, under the circumstances of this case, should not have been permitted to raise it by instruction, when the plaintiff had no opportunity of amending and accommodating his evidence to the amendment. The contract, though not performed within time, was in all other respects considered as binding, the forfeiture for a failure to comply with this stipulation having been waived. We can clearly see that the appellant was not injured by the refusal of this instruction.

The objection to the refusal of the second of appellant’s instructions has been answered by what has been already said.

As it appears that the fourth instruction was based on the second specification of the seventh article of the contract, we do not see how its refusal affected the merits of the case.

Whether the fifteen per cent, retained by Duff & Co. by their contract with the appellant was a penalty or not is a matter with which the plaintiff has no concern; nor do we see how the question can affect this case. It seems to be an abstraction.. There was no error, then, in refusing the eleventh instruction.

In relation to the retained percentage, it may be remarked that the contract between the appellant and plaintiff contains no reference to the contract between the appellant and John Duff & Co. If the appellant had a contract with Duff & Co., by which they were to retain a percentage as a security for the completion of the entire work, if the appellant sublet to the plaintiff, with a similar clause, a portion of the work to be done by him, and if by reason of the appellant’s failure to comply with his contract, nof. caused by the fault of his subcontractor, he fails to receive the retained percentage, that is no reason, if the subcontractor has performed his work agreed to be done, and' it has been received, he should not have the percentage retáined under his contract. To bold otherwise would be to allow the appellant to take advantage of his own wrong. The plaintiff is entitled to his retained percentage, having performed his contract; and as, by the terms of the contract, he was entitled to it a certain number of days after the appellant had received it, if the appellant has by his own conduct prevented himself from receiving the percentage clue him from John Duff & Co., which he was to pay the plaintiff after the receipt of it by himself, under such a state of facts, what can be clearer than that the plaintiff is entitled to recover the percentage retained under his contract ? Affirmed.