text:
    Cafferatta, Respondent, v. Cafferatta, Appellant.
    1. Declarations or admissions made by a party to a suit are not conclusive as to the truth of the facts admitted.

      Appeal from St. Louis Circuit Court.

    This was a suit to recover compensation for services rendered by plaintiff as bar-keeper for defendant. The services of plaintiff as bar-keeper were admitted by defendant, but all indebtedness was denied, and it was alleged that these services were rendered under a special agreement and understanding that defendant was to pay for the clothes, board and lodging of plaintiff, and allow him reasonable pocket money for his services. Declarations made by plaintiff in conversation with third persons were introduced in evidence in proof of this understanding; and defendant asked the court to rule that these admissions were conclusive as to the terms upon which the services were rendered. This instruction among others, which it is unnecessary to set forth, was refused by the court.

      T. T. Gantt, for appellant,
    cited Beeler v. Coonce, 9 Mo. 34T; Hollister v. Johnson, 4 Wend. 6S9.

      Hart & Jecho,
    cited Greer v. Mulliken, 5 Mo. 489.
   LEONARD, Judge,

delivered the opinion of the court.

The only question upon the trial of this cause was, whether the plaintiff’s service as bar-keeper for the defendant was under the speeial agreement relied upon in the answer ; or whether it was a general service for a reasonable compensation, as declared for by the plaintiff. Whether, if we had been sitting in the trial of the issue of fact, the evidence would have resulted with us as it did with the jury, is not a matter here for our consideration. If no error of law occurred in the progress of the trial, the verdict given by the jury and approved of by the court below must stand, although it may be that we would have found otherwise on the same evidence.

No set-off is pleaded, for we can not treat as such the loose general statements contained in the answer of money paid for the use or at the request of the plaintiff, and so no question could be made on the trial as to the defendant’s right of recovery on account of these payments, and there was therefore no error in the instruction given at the plaintiff’s request. The instruction asked by the defendant, in reference to the conversations of the plaintiff was improper. These admissions were competent evidence against the party and rightly received ; but certainly they were not conclusive of the fact alleged to have been admitted. They were properly submitted to the jury, and it was their duty to give them their just weight in settling the question of fact involved in the cause.

The instructions given by the court, upon its own suggestion, presented the law of the case properly to the jury, and if the defendant has any ground of complaint, it is on account of the finding of the fact, and not for any misdirection of the judge. The judgment mnst be affirmed.


source: Caselaw Access Project

author: Rylakd, Judge.

license: Public Domain

text:
    Whittelsey, Appellant, v. Dorsett & others, Respondents.
    1. Jones v. Brinker, (20 Mo. 87,) and The State, to use of Tourville, v. Rowland, ante, (p. 95,) affirmed.

      C. C. Whittelsey, for appellant.

      Gantt, for respondents.
   Rylakd, Judge.

This case comes fully within the principles laid down by the court in the case of Jones v. Brinker, 20 Mo. 87, and of the case of State, to use of Tourville, v. Roland et al., decided at the present term. The judgment must be affirmed ;

the other judges concurring.


author: RylaND, Judge,

text:
    Wise, Respondent, v. Wimer, Appellant.
    1. In a suit brought by an assignee against the sheriff for improperly levying an attachment in favor of a creditor of the assignors, the record of the attachment suit (the assignee not having been a party thereto) is inadmissible in evidence to show fraud in the assignment.
    2. To make an assignment for the benefit of creditors void for fraud, the fraud must be brought home to the assignee.

      •Appeal from St. Louis Court of Common Pleas.

    This was an action brought to recover the value of certain personal property, which defendant had seized and carried away, and of which plaintiff claimed to have been in the lawful possession as owner in trust for the benefit of the creditors of Osborne, Camp & Co., they having made an assignment of the same for the benefit of their creditors. The defendant set up in his answer that he made the seizure complained of, as sheriff of St. Louis county, by virtue of a writ of attachment in his hands against said Osborne, Camp & Co. ; that his levy was made before the execution and delivery of the dped of trust to plaintiff; also, that said deed was made with intent to hinder, delay and defraud the creditors of said Osborne, Camp & Co.
    The cause was tried by the court, and judgment was given for the plaintiff. The facts, as found by the court, sufficiently appear in the opinion of this court. In the course of the trial defendant offered in evidence the record of the proceedings in the attachment suit in which the levy was made; it was ruled out as inadmissible.

      Knox & Kellogg, for appellant,
    cited 11 New Hamp. 55 ; 2 Hill, 628 ; 2 Shepley, 303 ; 16 Pick. 33; 17 Mass. 110 ; 13 Met. 304, 200 ; 11 Pick. 352; 10 Serg. & Rawle, 201; 17 Pick. 140 ; 2 Watts & Serg. 147; 1 Hoff. 511; Smith, 190 ; 17 Ver. 271; 6 Watts & Serg. 94 ; 5 Mo. 463.

      Krum & Harding, for respondent,
    cited 18 Mo. 13; 19 Mo. 17.
   RylaND, Judge,

delivered tbe opinion of tbe court.

From tbe finding of tbe facts by tbe court in this case, it is obvious that, whether tbe deed of assignment be such an instrument as is required by law to be recorded or not in order, to give it validity, there was such a delivery here of tbe assigned property by tbe assignors and a possession of it by the as-signee as to do away with tbe necessity of recording tbe instrument. The assignment was made on tbe 14th July, 1854. Tbe assignee, Wise, asked for tbe key of tbe shop and premises of Osborne, Camp & Co., which was delivered to him. He thereupon delivered tbe key and assignment to Mr. Lord, informing Lord that Osborne, Camp & Co. bad made an assignment to him (Wise), and asked Lord if be would take possession of tbe property named in tbe assignment for him (Wise), and keep possession thereof as Wise’s agent. Lord agreed to do so ; and about five o’clock in tbe evening went to Osborne, Camp & Co.’s place of doing business with tbe key, and took possession of the premises. Tbe said place of business bad been kept open, as usual, during the whole of said 14th day of July, 1854, and after Lord took possession continued open till six o’clock, which was tbe customary hour of closing tbe same. Lord then locked tbe front door, and kept tbe bey thereof, leaving tbe side door open, as usual, for tbe workmen to leave by. Whilst tbe property was in this condition, in possession of Lord, be being actually present in tbe back part of tbe shop, tbe defendant’s deputy entered the side door and seized and carried away tbe property now sued for. Tbe sheriff’s deputy and tbe plaintiff in tbe attachment were informed of tbe assignment by Osborne, Camp & Co. to tbe plaintiff for tbe benefit of their creditors. On tbe 15th of July, tbe deed of assignment was duly filed for record. If by the law this instrument was to be recorded in order to give it validity, and of this there is much doubt, still there must be a reasonable time allowed for such filing and recording. Here, tbe instrument was filed the next day, and surely this ought to be considered within reasonable time.

Whether, then, we look at this case in regard to the possession of the property by Wise, the plaintiff, after the execution of the assignment, or at the time when the instrument was filed for record, we think, on both grounds, the law is with the plaintiff, and was properly so decided for him by the lower court.

There is no error in rejecting the record of the suit between Anderson and Osborne, Camp & Co. It was not proper evidence against Wise in this suit. He was no party ; and there is no charge against him of fraud. Fraud must be brought home to him to make the assignment void, so far as his rights are involved. (Gates v. Labeaume, 19 Mo. 17.) This was so decided last term in the case of Stewart v. Wimer, not yet reported. In order to affect the assignee, he must be charged with complicity in fraud of the assignors.

Upon the whole record, as presented to us, there appears no error. The facts found are sufficient to sustain the judgment; and we see no error in admitting or rejecting evidence or in declaring the law of the case. The judgment will therefore be affirmed ;

the other judges concurring.


author: Eyeand, Judge,

text:
    Fortune, Appellant, v. City of St. Louis, Garnishee of Dillon, Respondent.
    1. The city of St. Louis is not subject to the process of garnishment.

      Appeal from St. Louis Court of Common Pleas.

      Hudson & Thomas, for appellant.

      W. L. Williams, for respondent,
    cited Hawthorn v. City of St. Louis, 11 Mo. 59; 6 Vermont, 121; 12 Conn. 404; 11 Conn. 124 ; 2 Mass. 37; 16 id. 275; 7 Monr. 439.
   Eyeand, Judge,

delivered the opinion of the court.

James Fortune caused an execution to be issued on a judgment of the Court of Common Pleas for St. Louis county, against John Dillon, and had the city of St. Louis summoned as garnishee. At the September term of said court in 1854, said Fortune caused a statement of the grounds on which he had ordered the city to be summoned as garnishee to be filed, and filed also interrogatories for the city to answer. The city demurred to the allegation and interrogatories ; the court sustained the demurrer, and Fortune brings the case here by appeal. The question in this case falls within the principles of the decision heretofore made by this court in the case of Hawthorn v. City of St. Louis. (11 Mo. 60.) The counsel for the appellant attacks that decision, and urges this court to overrule it. He fails however to bring to the support of his argument any authority. We adhere to the principles laid down in that decision; and as this case is embraced by it, we will affirm the judgment. (2 Mass. 37; 12 Conn. 404; 6 Verm. 121; 7 Monroe, 439; 11 Conn. 124.) The other judges concurring, the judgment is affirmed.


author: Scott, Judge,

text:
    Schnette, Respondent, v. Sutter, Appellant.
    1. Judgment reversed because the damages awarded were excessive.

      Appeal from St. Louis Court of Common Pleas.

    This was an action for the possession of a horse alleged to belong to plaintiff. The verdict of the jury was as follows : “ We, the jury, find that the value of the horse, at the commencement of this suit, was forty-five dollars ; and we further find that the use of the horse, from the commencement of the suit to the present time, is worth one ‘hundred dollars.” It is unnecessary to set forth the facts more fully than they appear in the opinion of the court.

      S. H. Gardner, for appellant.

      C. Kribben, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This judgment must be reversed. The verdict is inconsistent with itself, when considered in reference to the facts of the case. The plaintiff did not allege nor prove any special damage resulting to him from a deprivation of the use of the pony. The value of the pony being ascertained to be forty-five dollars, by no fair calculation could one hundred dollars be given as damages for its detention from the time of taking until the assessment of the damages, a period less than a year. Juries should look a little to their own knowledge of things and not follow calculations resulting in such absurdities. Because a man once in a week or month may get one dollar and fifty cents for the hire of a horse, it does not follow that this sum should be allowed every day in the year as a compensation for being deprived of the use of the animal. It is an unheard of thing that the owner of a pony worth forty-five dollars, and not strong enough to convey a man, should have one hundred dollars for being deprived of its use for less time than a year, no special damage being shown.

The first instruction given by the court was more favorable to the defendant than the law warranted, as it did not inform the jury that the plaintiff’ should have known or believed that the money received was on account of the sale of thé horse. The court might have told the jury that the declarations of the plaintiff were not evidence against the defendant unless they were acknowledged expressly or impliedly by him to be true. We see no other objections to the instructions in the case.

The judgment is reversed, and the cause remanded;

the other judges concurring.


text:
    Wimer, Plaintiff in Error, v. Obear and Mason, Defendants in Error.
    1. Section 42 of the “ act to regulate executions,” (R. C. 1845, p. 483,) which provides that if the purchaser "refuse to pay the amount bid by him for property struck off to him, the officer making the sale may again sell such property at any time to the highest bidder; and if any loss shall be occasioned thereby, the officer shall recover the amount of such loss, with costs, by motion before any court,” &c., does not authorize a judgment on motion against one who has been substituted in the place of the purchaser at the sale, with the consent [of such purchaser, and who has been reported as the purchaser by the sheriff; this summary remedy by motion can be had only against the actual purchaser at the sale.
    2. Qnere : whether this section embraces a sale in partition.

      Error to St. Louis Circuit Court.

    This was a motion made by John M. Wimer, late sheriff of St. Louis county, for judgment against J. H. Obear and E. it. Mason, for the sum of $915 BO, the amount of loss alleged to have been occasioned by their refusal to pay the sum bid by them at a sale of certain lands made by said Wimer as sheriff of St. Louis county, under an order of the Circuit Court, in a suit in partition. Among other matters that it is unnecessary to set forth, it appeared upon the trial of the issues raised by the answer of defendants, that the land was struck off at.the sheriff’s sale, under an order of court in a suit in partition, to one Rudolph Bircher ; that defendants, Obear and Mason, were not present at the sale ; that Bircher afterwards sold the right acquired by him by his purchase to defendants for $50 ; and that at the request of Bircher, Obear and Mason, the sheriff substituted Obear and Mason as the purchasers in the place of Bircher, and reported them as the purchasers.
    The court gave judgment for defendants. Plaintiff duly excepted.

      S. H. Gardner and Bichardson, for plaintiff in error.

      M. L. Gray, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

As we are of opinion that the defendants are not liable in this proceeding, we deem it unnecessary to examine the question, whether a sale in partition is within the 42d section of the law regulating executions, on which this motion is founded, and which enacts that if the purchaser refuse to pay the amount bid by him for property struck off to him, the officer making the sale may again sell such property at any time to the highest bidder ; and if any loss shall be occasioned thereby, the officer shall recover the amount of such loss, with costs, by motion before any court.” This is a statute introductory of a new provision in regard to sheriff’s sales, rather penal in its character, and summary in its execution. Under such circumstances, a principle of the law restrains us from going farther than to give the language of the act a fair construction, so as to cover the cases coming within its terms. Whether the defendants are liable in any other form of proceeding for their conduct, we are not called upon to determine; the inquiry before us is, whether they are subject to the motion made against them by the plaintiff,- who was, at the time of this transaction, the sheriff of St. Louis county. It is evident that the defendants are not within the terms of the law. They were not purchasers at the sale, nor even present. When another is substituted by consent for the purchaser at a sheriff’s sale, and the act is completed, the money is paid and the deed delivered, the law is satisfied. No one is injured. But if, after an agreement for substitution, the party refuses to be substituted, then the sheriff must look to the person who was really the purchaser at his sale. His return would not be in the way, as the court, on a representation of the facts, would permit an amendment. The sheriff would have no authority to release the first or real purchaser but upon his finding an actual substitute. The individual who actually becomes the purchaser must comply with the terms of the sale, or find some person who will. If he who agrees to be substituted afterwards flies bis engagement, tbe original liability of the first purchaser is not discharged, as his substitute could only be accepted with the tacit understanding that he would comply with the terms of sale. The case under consideration illustrates the inconvenience of the construction sought to be put upon the statute by the plaintiff. The court, on motion of one party, would be made to decree the specific execution of a contract for the sale of land between two other parties, about the terms of which they are not agreed, and one of whom is not before the court. The court is not competent to such a task on motion. The law only gives it jurisdiction of the purchaser who refuses to pay the amount bid by him. The defendants were not purchasers, nor did they bid any thing, and neither by their consent nor agreement could they change the words of the statute and make it comprehend cases not within its terms. The judgment is affirmed ;

the other judges concurring.


author: LEONARD, Judge,

text:
    Taylor et al., Plaintiffs in Error, v. Jeter & Robinson, Defendants in Error.
    1. A. agreed to erect a building for B., A. furnishing tbe materials ; B. engaged to pay to A. various specified sums at particular stages in the progress of the work, the remainder to he paid sixty days after the completion of the building, and its acceptance by B. 5 C. became the security of A. for the fimely execution on his part of this contract. The building was completed by A. and accepted by B., and although B. received notice before the completion of the building of the filing of various mechanics’ liens for materials furnished by sub-contractors under A., he yet paid to A. the contract price before the completion of the building, and before he was bound by the contract to pay the same. Held, that B. having been compelled to pay the liens thus established against the building in breach of the contract of A., and having failed to protect himself by retaining the sums falling due after the date of the notice of the liens, could not resort to C. as the security of A. for indemnity.

      Error to St. Louis Court of Common Pleas.

    On the 1st November, 1851, an agreement in writing was made between defendant, Jeter, and the trustees of the post-office building. Jeter, on bis part, contracted to furnish all the materials and do all the work with diligence and dispatch necessary to the erection and entire completion of said building in accordance with certain plans and specifications (except certain portions of the work particularly named). He also agreed to make deductions from the contract price provided certain changes were made, and it was mutually agreed that the contract should not be impaired by reason of any alteration that might be directed by the trustees, and in the event any addition or omission in the plan of the building should be directed by the trustees, the cost thereof should be agreed upon in writing, and signed by the parties before the change should be made or any allowance therefor should be claimed. The trustees, on their part, agreed, in consideration that Jeter would faithfully perform his undertaking, to pay him $6625, as follows : when the first floor of joist was laid, $500 ; when the second was laid, $700; when the third was laid, $700 ; when the building was roofed, $1600 ; when the building throughout was ready for plastering, $500 ; when the building was finished, $1000; and the residue sixty days after they should receive the building. The agreement was signed by •Taylor for the trustees, and by Jeter. On the day the agreement was made, the defendant, Robinson, as the surety for Jeter, executed a writing obligatory, wherein he bound himself to the trustees in double the amount of the sum for which Je-ter had contracted to erect the building, conditioned for the timely execution and fulfilment of the entire undertaking on the part of Jeter as set forth in the said agreement. On these instruments the plaintiffs instituted this suit.
    The petition states that Jeter proceeded to construct the building in pursuance of his agreement; that including $694 90 allowed him for extra work, the whole amount due him was $6619 90; that they paid him, fr.om time to time, various sums, amounting in all to $6544 89, leaving unpaid, of the amount due him, $75 01 ; that Jeter did not fulfil his agreement, in that he did not furnish all the materials and do all the work necessary to the completion of the building for $5925, but, on the contrary, they paid him that sum and the further sum of $619 89 for extra work ; that Jeter, having employed sundry persons to furnish materials for and to do work upon the building, of the descriptions which, by his agreement, he was required to furnish and do, failed to pay said persons for such materials and work, and thereupon said persons filed liens on the building, and prosecuted the same to judgment, which plaintiffs were legally compelled to pay and did pay ; that they paid the following judgment lien creditors, to-wit, Isaac Fisher, $32 47; Jacob Yogdes et al., $658 47 ; Kingsland & Lightner, $326 47 ; A. M. Bacon, $182 68, and William Patrick, $264 98, amounting in all, including interest and costs, to $1460 07 ; which sum, less $75, the amount unpaid to Je-ter, they claimed to be due them, and for which they asked judgment against Robinson & Jeter.
    The answer of Robinson put in issue the material allegations in the petition, and averred that the plaintiffs gave him no notice, during the time Jeter was doing the work, that he was failing in any manner to comply with his agreement, or that he was failing to furnish any materials he had agreed to furnish, or that he had failed to pay the persons to whom he was indebted for work or materials, or that liens were filed against the building, or that Jeter was doing extra work. Jeter made default, and final judgment was rendered against him.
    The case was tried by the court and the finding is as follows : ‘ ‘ The court finds the facts to be as follows : The plaintiffs are and were, as averred in the petition, trustees of the post-office building company. The defendant did execute the writing obligatory set out in the petition as in the petition alleged, and the said Jeter did execute the contract in the petition alleged to have been executed by him. [The contract and writing obligatory made part of the finding.] The said Jeter furnished all the materials and performed all the work and labor required of him by said contract, but failed to pay therefor in the several matters charged in the petition. In consequence of said failure on tbe part of said Jeter to pay therefor, the plaintiffs paid the said lien creditors after they had obtained judgments on their respective lien claims, at the times set out in the petition, the sum of $1885 06, including interest thereon ; and of said sum, $210 78 were paid by the plaintiffs for liens growing out of the extra work and materials. The said building was completed and accepted by the plaintiffs on the first day of June, 1852. The following payments were made by the plaintiffs to said Jeter, under said contract:
    1851. Nov. 15.$500 00
    « 15.21 00
    “ 29.700 00
    Dec. 24.700 00
    1852. Feb. 7.1600 00
    “ 28.500 00
    Mar. 27 .85 87
    April 3.78 50
    “ 5.463 00
    1852. April 10 .294 00
    “ 10.114 50

      “ 17.66 00
    Mar. 20 .42 00
    May 12 . 32 40
    “ 14 ...60 25
    « .14 300 00
    “ 14.537 37
    « 14 450 00
    The amount of work and materials furnished by said Jeter under the terms of the contract, paid and unpaid for, was $5925 ; extra work amounted, according to agreement of parties, to $694 90. The defendant did not pay nor did said Jeter pay any of said lien claims. -The defendant received no notice from any of the plaintiffs, during the time said Jeter was at work under said contract, that said Jeter was not complying or that he was in any manner failing to comply with said contract, or that he had failed to pay for materials, work or labor on said building, or that he was doing extra work on said building, or that any liens were filed against said building. The said Jeter was fully paid for said work and materials, less $75 01, by the 14th May, 1852, and the plaintiffs had notice of the said lien claims mentioned in the petition, the amounts thereof, and that the persons to whom they were due would claim liens on said building, as follows, to-wit: They had notice of the said claim of William Patrick on the 23d April, 1852 ; of the said claim of Kingsland & Lightner on the 7th May, 1852 ; of the said claim of Yogdes & Garnett on the 7th May, 1852 ; of the claim of A. M. Bacon on the 15th May, 1852, and of the claim of said Isaac Tucker on the 15th May, 1852. Said claims were for work and materials to be furnished by said Jeter under his said contract, and said liens were duly perfected in the St. Louis Circuit Court, and the plaintiffs had notice of the first four of said lien claims before the last five of said payments were made. The said Jeter failed to furnish the materials and work by him agreed to be furnished with diligence and dispatch, as agreed by him, in that he never paid for the materials and work as aforesaid, embraced in the said several lien claims. The amount paid by the plaintiffs to discharge said liens, including the interest thereon, exclusive of the liens for extra work and materials, is, including the interest thereon from the time of said payments to the present time, at the rate of six per cent, per year, the sum of $1842 54, after deducting $75 of contract price remaining unpaid to Jeter. Thereupon, the court declares that the plaintiffs are not entitled to recover of the defendant, Robinson.”
    A motion for a review having been made and overruled, the case is brought to this court by writ of error.

      C. D. DraJee, for plaintiff in error.
    I. The ground insisted upon by the defendant, Robinson, and that upon which the decision of the court below is believed to have been based, as discharging him from liability, is, that the plaintiffs, by paying Jeter in advance of the times specified in the contract, deprived Robinson of a security, to the benefit of which he claims, that he, as Jeter’s surety, was entitled. It is submitted that this position is manifestly erroneous, for the following reasons : 1st. The stipulations in the contract with Jeter can not be regarded in any way as intended for the protection of Robinson, but simply as designating the times'when and the proportions in which the contract price should be paid to Jeter. When, therefore, Jeter applied for and received payments in advance of the dates specified, Robinson was as much his surety for the fulfilment of the contract as though such payments had not been made until the times designated therein. 2d. There is nothing in the case tending to show that the deferring of the payments to Jeter until the times specified in the contract would have, in any way, prevented the sub-contractors from filing their liens against the building and compelling the plaintiffs to pay them. If Robinson seeks to avail himself of a departure from the strict terms of the contract, he must show how such departure has affected him. The presumption is that the money paid to Jeter in advance of the times stipulated, was applied to the erection of the building according to the contract. If it was, then the amount of the liens remained, and Jeter was bound to pay them ; and in default of his doing so, Robinson was so bound. 8d. When Robinson seeks to avoid his liability as surety because plaintiffs paid Jeter in advance of the time of payment required- by the contract, it is necessary for him to show, that if the payments had not been made until they were due, Jeter’s contract would have been ful- ’ filled. If he neither shows this, nor that the non- fulfilment of the contract was owing to the advance payments, he does not make out a case of injury to him which will discharge him as surety. 4th. The facts found by the court do not justify the conclusion of law declared thereupon. Upon the supposition that Robinson, as surety, was entitled to a strict adherence by the plaintiffs to the terms of payment specified in the contract; here is the sum of $1167 58 in excess of the contract price, which plaintiffs have been obliged to pay, and which, so far as appears in the case, they would have been obliged to pay, whether their payments to Jeter had been made in advance or at the times stipulated. It is contended, therefore, that for this sum at least judgment should have been given for the plaintiffs.

      Glover & Richardson, for defendants in error.
    I. The surety was entitled to the indemnity against liability by the provision in the contract that the principal should only be paid at certain intervals.
    II. The plaintiffs having the means of satisfaction in their own hands, were bound to retain it, and having voluntarily surrendered the security without the knowledge or consent of the surety, be was discharged. (Commonwealth v. Miller, 8 Serg. & Raw. 457; Lechenthaler v. Thompson, 18 id. 159 ; Law v. East India Co. 4 Yesey, 829Einney v. Commonwealth, 1 Pen. & Watts, 242 ; Theohold on Prin. and Surety, sec. 174, p. 95; 1 Story’s Eq. § 325, 826.)
    III. The petition states that the plaintiffs were compelled to pay the liens ; the respondent, in his answer, ignores any knowledge on the subject, and puts the plaintiffs to the proof; the proof shows that the payments were not compulsory, because, after they received notice of the liens, they had money in their hands belonging to Jeter which was sufficient to discharge the liens, and which they voluntarily passed away, when they ought to have retained it to satisfy the liens.
    IY. The court found that the money was paid to Jeter, not to any creditor who furnished materials or ’did work on the building. No presumption can arise that the payments were made in order to prevent liens, and it can not be argued that if the money in the hands of the plaintiffs had been withheld from Jeter and paid to the lien creditors mentioned in the petition, that other creditors would have filed and perfected liens.
   LEONARD, Judge,

delivered the opinion of the court.

It is well settled in our equity law, and it seems, too, in the legal systems of other countries, that the surety is entitled to the benefit of all the securities for the debt taken by the creditor from the principal debtor, and is therefore discharged from liability to the extent to which the creditor has parted with these securities ; and this is agreeable to natural equity. (1 Story’s Eq. § 327, et seq.) Accordingly, in a case like the present, (Calvert v. The London Dock Company, 2 Keen’s Rep. 639,) where a contractor undertook to perform certain work, and it was agreed that three-fourths of the work, as furnished should be paid for every two months, and the remaining fourth upon the completion of the work, the Master of the Rolls, Lord Langdale, decided that the sureties for the due performance of the contract were released from their liability by reason of payments, exceeding three-fourths of the work done, haying, without their consent, been made to the contractor before the completion of the whole work. The same principle is applied in the present case, and, although the defence grows out of an equitable and not a legal right, and in the English case the relief was given in equity and not at law, yet under our present system of procedure-it maybe relied upon as a de-fence to a suit upon the legal liability, if all the necessary parties are before the court. The contract duty of this builder was to furnish the materials and do the labor, and he failed in both respects when he allowed the building to be encumbered with these liens. The owner having notice of them, and paying what by the substantial terms of the contract he was entitled to retain until they were removed, voluntarily abandoned an ample fund, which, according to the conditions of the contract, was to accumulate in his own hands as the primary security for its due performance, and in which the surety had an equal interest with himself. He must, therefore, bear the loss occasioned by his own negligence or folly. The judgment is affirmed.


author: Soott, Judge,

text:
    McPherson, Respondent, v. Willard, Appellant.
    1. Case affirmed.

      Appeal from, St. Louis Court of Common Pleas.

      Hudson & Thomas, for appellant.

      Krum & Harding, for respondent.
   Soott, Judge,

delivered the opinion of the court.

There is no point of law fairly raised in this case. The matter is, whether the language of the instructions is appropriate to the facts. It can serve no useful purpose nor is any interest promoted by a critical examination of each of the instructions given and refused. No proposition of law stated in any of the instructions is controverted. The instructions given present the case to the jury as it was made by the proof in connection with the pleadings, and we see no error in them. The point that the damages are excessive has no foundation to' sustain it. The jury having found the existence of the contract as stated in the petition, the damages could not be well otherwise than they were.

Judge Ryland concurring,

the judgment is affirmed.


author: Ryland, Judge,

text:
    Menkens, Respondent, v. Menkens, et al., Appellants.
    1. In a suit for the conversion of a promissory note, the value of the note will be taken, prima facie, to he the sum payable on its face.

      •Appeal from St. Louis Circuit Court.

    Casselberry, for appellants.

      Hill, Glover & Hill, for respondents.
   Ryland, Judge,

delivered the opinion of the court.

Plaintiff was the holder and owner of a note for one thousand dollars, drawn by John Coleman, Andrew Coleman and James Coleman, dated April 29th, 1854, payable four months after date, to the order of Burrows & Prettyman, and by them endorsed and guaranteed to plaintiff. Defendants were parties doing business in the name of J. H. Menkens & Bros. Plaintiffs, on or about the date of the note, delivered it to defendants for collection. Defendants endorsed the note in their firm name ; negotiated it for their own use ; parted with the possession ; realized the proceeds, and, on demand, refused to account for the note or pay over the proceeds. These facts are substantially alleged in the petition and admitted in the answer. The answer pleads a set- off to a large amount, to which a replication was filed denying the greater part. The cause was tried by the court; the plaintiff rested upon the admissions of the answer, and the defendants offered no proof in relation to the set- off. The defendants proved by a witness that at the maturity of the note, he protested the same for non-payment at the request of Page & Bacon, who were then the holders ; that tbe note was then endorsed by Burrows & Prettyman, defendants, and two other parties ; .defendants’ endorsement being next after Burrows & Prettyman’s, and that, so far as the notary knew, the note was not yet paid.

The court gave judgment for plaintiff for the amount of the note and interest, less the amount of set- off admitted and interest thereon, refusing to allow a counter set-off made by plaintiff, of which there was no proof. A motion for review was filed by the defendants and overruled by the court, and the defendants appealed.

The question here is, upon which party was the burden of proof of the value of the note sued for. The defendants insist that the burden of this proof was on the plaintiff, and that he was bound to show the value of the note! The plaintiff insists that the note was, prima facie, worth the amount called for on its face. In the absence of proof, the presumption is that this instrument was worth the amount payable by it, and it was the duty of the defendants to. have returned it to the plaintiff, and in default of doing so they became liable for its value, which must be presumed to be the amount payable by it, in the absence of all proof to the contrary. Now, although the note here was protested for refusal to pay by .the maker, there was no evidence of any refusal to pay by the guarantors, or of their inability to pay. The defendants can not hold the note which was the property of the plaintiff, and refuse to return it to him, andf, when sued for the consideration of it, offer no evidence of its value, and justify themselves by saying the plaintiff has offered no evidence of the.value, and therefore can not recover.

The note, there being no proof to the contrary, is prima facie worth what it calls for on its face, and this presumption is not rebutted in this case by the protest of non-payment by the maker, since its payment is guaranteed by others, and there is no proof of the want of ability on their part to pay. The judgment therefore of the lower court is correct, and must be affirmed ;

the other judges concurring.


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    Gramp, Respondent, v. Dunnivant, Appellant.
    1. A petition conforming fo the statutory forms, accompanying the practice act of 1849, is sufficient.
    2. Where, after the overruling of a demurrer to a petition, fina] judgment is rendered for the plaintiff, and it appears from the entry of the judgment that the inquisition of damages was taken “without any proof” of the amount of the damages sustained ; held, that this fact should he preserved by bill of exceptions ; there being nothing to the contrary except this statement in the entry of judgment, it will be presumed that the inquisition of damages was proper]y taken.

      Appeal from St. Louis Law Commissioners Court.

    C. C. Carroll, for appellant.

      M. L. Gray, for respondent.
   RylaND, Judge,

delivered the opinion of the court.

The plaintiff brought his action in the Law Commissioner’s Court, against the defendant, as follows : “ Plaintiff states that defendant owes him one hundred and ten dollars for work done and materials found for the defendant, the particulars of which appear by the following account hereto annexed, and made part of the petition. ‘ 1854. Joseph Dunnivant to George Gramp, Dr. To digging a well in the rock by blasting twenty feet, the first ten feet at $5 per foot, and the next ten feet at $6 per foot, $110.’ Plaintiff asks judgment for one hundred and ten dollars, with interest, being the amount due him.”

To the petition the defendant demurred, because, 1st. It is not averred in the petition that the work was done or the materials furnished by the plaintiff at the request of defendant; 2d. The particulars of the demand are not set forth according to law, in such case made and provided. The court overruled the demurrer, and the defendant relying on it, the court gave judgment on the demurrer 'against defendant, considering the plaintiff’s petition as confessed, and an inquiry of said defendant’s indebtedness to the plaintiff was awarded forthwith. The plaintiff waiving a jury, submitted the cause to the court, and the court, “ without any proof, being fully advised of and concerning the premises, doth find that said defendant is indebted to plaintiff in the amount of one hundred and ten dollars,” and rendered judgment accordingly for that amount against the defendant. The defendant afterwards filed his bond, and prayed for and obtained an appeal to this court.

There is no bill of exceptions ; no motion to set aside the inquisition of damages. The case comes here upon the judgment of the court on the demurrer. This involves the sufficiency of the plaintiff’s petition. The petition is in the form given by the statute, and whether this be framed strictly according to the requisitions of the act, is immaterial; it is sufficient that it is in the form prescribed. There is no error, then, in overruling the demurrer, or in giving judgment thereon for the plaintiff. The question, then, is, whether it appears from the record that the inquisition of damages was taken without proof of the actual damages sustained. It is so stated in the entry on the record ; but whether it is competent to preserve the fact in the record in this manner, is the question. A majority of this court is of the opinion that it is not competent to preserve such a fact by an assertion of the court of its existence on its records. The evidence is no part of the record in any case ; it must be placed on record by bill of exceptions. A motion during the trial is no part of the record, unless it be made such by bill of exceptions. The fact that there was or was not proof of any matter in controversy before the court, must be placed on its records in proper manner. The court can not say that there was no proof by simply stating that fact in its judgment. If this be allowed, then any other fact stated by the court may become equally as well a part of the record. The judgment below will therefore, with the concurrence of Judge Leonard, be affirmed, there being nothing properly on the record to contradict the presumption that the inquisition of damages was lawfully and properly taken.


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    Tevis, Appellant, v. Tevis’ Administrator, Respondent.
    1. A. commenced suit against B., the administrator of C., on a promissory note, of which C. was maker. D. and E., endorsers of said note, were made co-defendants. On the trial, such instructions were given as precluded a recovery against the endorsers, or rendered it doubtful; whereupon plaintiff took a non-suit, and then, after the expiration of a year from the date of the first letters of administration, presented his claim to the Prohate Court for allowance, as a demand against the estate of C. The demand was allowed, and placed, against the objection of A., in the sixth class of claims instead of the fifth. In the suit of A. against B. service of process was had upon B. within a year from the date of the first letters of administration. Held, that this demand should have been classed in the fifth class of claims. (Scott, J., dissenting.)

      Appeal from St. Louis Circuit Court.

      N. E. & G. P, Strong, for appellant.
    P. B. Garesché, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The only point in this case regards the proper classification of the allowance in favor of the plaintiff against the estate. The record shows that letters of administration upon the estate of Henry L. Tevis, deceased, were granted to 0. C. Sanders on the 11th day of April, 1858 ; that in October, 1853, John Tevis, the present plaintiff, instituted a suit in the Circuit Court of St. Louis county, returnable to the November term of said court in the same year, upon the same note which is the foundation of this present action ; that a summons, with a copy of the note, was duly served upon the administrator, Sanders, on the 18th day of October, 1853; that the members of the firm of Tevis, Sons & Co., the endorsers of the note, were also joined as defendants to the suit in the Circuit Court; that at the trial of the suit in May, 1854, the Circuit Court gave instructions which either precluded a recovery against the endorsers or rendered it very doubtful. The plaintiff took a non-suit; and afterwards moved to set it aside, which motion was overruled : exceptions were filed ; and there the matter rested as to the endorsers, Tevis, Sons & Co. There was no dispute as to the liability of the estate of H. L. Tevis, the maker of the note. The plaintiff then presents the note as a demand against the estate of Henry L. Tevis, in the Probate Court of St. Louis county, at the September term, 1854 ; the administrator appeared in open court and waived notice, and the claim was allowed and placed in the sixth class. The plaintiff appealed from the judgment and classification of the Probate Court to the Circuit Court. His demand was again allowed and again placed in the sixth class by the Circuit Court. To the action of the Circuit Court, in placing his demand in the sixth class of claims, the plaintiff excepted, and has appealed to this court.

This point depends upon the construction of our statute of administration, the 4th and 5th sections of the 4th article of which are as follows: Sec. 4. “All actions commenced against such executor or administrator, after the death of the deceased, shall be considered demands legally exhibited against such estate, from the time of serving the original process on such executor or administrator.” Sec. 5. “ Any person may exhibit his demand against such estate, by serving upon the executor or administrator a notice, in writing, stating the nature and amount of his claim, with a copy of the instrument of writing or account upon which the claim is founded, and such claim shall be considered legally exhibited from the timé of serving such notice.” The fifth class of claims allowed embraces “ all demands without regard to quality, which shall be legally exhibited against the estate within one year after the granting of the first letters on the estate.” The sixth class, “ all demands thus exhibited, after the end of one year, and within two years, after letters granted.” Now, was this demand legally exhibited within one year after letters were first granted ? The suit was brought on the demand in the Circuit Court, within the first year, beyond all doubt. The service upon the administrator, Sanders, to whom letters of administration were first granted, was duly made, by serving him with a copy of the petition and of the note sued on, within one year from the date of the letters first granted. Now the 4th section above quoted expressly declares that such action shall be considered a demand legally exhibited. This court therefore must consider that the suit brought on this note, within the first year of the administration, was a legal exhibition of the demand against the estate, and, as such, required the court to place it in the fifth class. We do not think that the non-suit taken by the plaintiff in that action, under the instructions given, was a voluntary abandonment of his demand against the estate. Under the 5th section quoted above, we see nothing to prevent a claimant from exhibiting his demand as therein pointed out, and still not present the same for adjudication in court until the expiration of the second year after the first grant of letters, and yet be entitled to have his demand in the fifth class. It does not depend upon the time of the adjudication upon the claim and its allowance; it depends upon the time the claim was legally exhibited against the estate; the exhibition may be within the first year, and the application for allowance made years thereafter. Now I see how the practice has grown up on this subject in the Probate Court. Under the act of 1835, the 5th section of the 4th article of the administration law has the important words, “ and that he will present the same for allowance at the next term of the court,” included in it. Then the claimant was bound to present the demand at tbe next term after serving such notice ; but these words are omitted in section 5th of the 4th article of administration : yet it is not bound to be presented at the next term, but may be in the next or succeeding year.

We are not prepared to say that a voluhtary. non -suit in the Circuit Court is a voluntary withdrawal of the exhibition of' a claim, so as to authorize the Court of Probate to disregard the time of its first exhibition by action. We are inclined to the contrary opinion. In this case, then, the majority of this court is of the opinion that the suit in the Circuit Court was a legal exhibition of the demand against the estate of H. L. Te-vis, and that the non-suit therein taken by the plaintiff did not render it a less legal exhibition ; and being thus exhibited within the year after the first letters of administration had been granted on the estate, the Probate Court should have classed it in the fifth class of claims, and that the Circuit Court erred in not thus classing it. The judgment of the Circuit Court is therefore reversed, and the cause remanded, with directions to place the allowance of the plaintiff in the fifth class of claims against the estate of H. L. Tevis, deceased.

Judge Leonard concurring ; Judge Scott dissenting. „


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    Payne, Respondent, v. E. W. Clark & others, Appellants.
    ■ X. A certificate of deposite made “ payable to the order of the depositor on return of the certificate, sixty days after date, with interest at the rate of six per cent, per annum,” will bear interest after maturity as well as be. fore (Leonakd, J., dissenting.)

      •Appeal from St. Louis Circuit Court.

    This a suit upon the same certificate of deposite as that involved in the suit of Payne v. Clark & Bros., formerly in this court, and reported 19 Mo. 152. The object of the present suit is to recover the amount mentioned in the body of the certificate — $1014. The only question now presented is as to what amount of interest the plaintiff is entitled to recover. The certificate is as follows :
    “ Banking House of E. W. Clark & Bros.
    “ No. 760. “ St. Louis, Mo., 26th Feb’y, 1851.
    “L. P. Payne has deposited in this office one thousand and fourteen dollars (in funds as below), payable to the order of himself, on return of this certificate, sixty days after date, with interest at the rate of six frer cent, per annum.
    “ $1014. “ Currency, ... $404 00
    “ Cash, - - - 1010 00
    “ |1414 00
    “ E. W. CLARK & Bros.”
    The finding of the court is as follows : “ That the defendants, on the 26th day of February, 1851, executed and delivered to the plaintiff the certificate upon which this suit is founded, being for the amount of money on that day deposited by the plaintiff with the defendants at their banking-house in the city of St. Louis, as set forth in the petition; that some time in the month of July, 1851, the plaintiff caused the said certificate to be presented for payment at said banking-house, but, instead of demanding the sum justly due thereon, the agent who presented the certificate claimed the sum of $1414, together with interest thereon, which amount defendants refused to pay ; that a few days only previous to the commencement of this suit plaintiff again caused said certificate to be presented for payment at the same banking-house, when the agent of the plaintiff claimed of defendant the principal and interest on said certificate at the rate of six .per cent, per annum up to the time of such last mentioned presentment or demand; but defendants refused to pay the amount so demanded, but ■were ready and willing and offered to pay the amount of principal and interest thereon up to the maturity of the certificate, or for sixty days only, that being, as they stated, their understanding of the terms of the contract; which sum plaintiff’s agent refused to receive, and the certificate still remains unpaid. At tbe time of tbe first presentation, no tender was proved bj tbe defendants, but there was only a refusal to pay tbe sum demanded; but tbe defendants, at.tbe time of the maturity of tbe certificate, and always since, bad on band, at their banking-house, funds sufficient to meet this and all other liabilities, and plaintiff could at 'any time, either at or after tbe maturity of tbe certificate, by presenting tbe same at tbe banking-house of defendants, have procured the amount of principal and interest for tbe sixty days only, that is, in tbe aggregate, $1024 65', defendants regarding that as tbe extent of their liabilities.
    Upon tbe facts as thus found, tbe court orders and adjudges that plaintiff do recover of tbe defendants tbe amount of principal upon the said certificate, with interest from tbe date of tbe same to tbe present date, (to be computed by tbe clerk,) together with costs of suit, and that execution issue therefor.”
    Shepley, for appellants.

      Ji. Buckner and Woods, for respondent.
   Soott, Judge,

delivered tbe opinion of tbe court.

Our opinion in this case is not influenced by the conduct of the parties. From tbe facts as they appear by tbe record, there is nothing in tbe conduct of Payne which merits any favor at tbe hands of the court. Were it a matter of discretion with us whether or not interest should be allowed to the plaintiff, as claimed by him, we would not hesitate to refuse it on tbe facts appearing in tbe case.

Tbe reason given in tbe English books why interest is payable on a promissory note, that it is the duty of the debtor to seek his creditor and discharge bis debt, is not tbe motive for allowing interest with us. In this state, a note payable on demand will bear interest from its date. Our statute regulating interest seems to be founded on tbe idea of the value of tbe use of money. Cases may occur in which a debtor may bold money for bis creditor and make no use of it; but our experience teaches us that, in most cases which occur, he who holds money which he owes to another, makes use of it, and our statute was designed to fix the value of that use. When a debt is made to bear interest from its date, and is payable at a given period, though some precedent act must be done by the terms of the contract before an action can be maintained for its recovery, there is no reason why the continuance of the interest should depend on the performance or non-performance of this precedent act. The interest allowed is for the use of the money, and the party who holds it has its use, and there is no reason why he should not pay for it. Our statute says, creditor's shall be allowed to receive interest for all moneys, after they become due by any instrument of the debtor in writing. Here is an’instrument in writing by which money is due, with interest, sixty days after date, on presentation of the instrument. Will any one say that the money on that instrument is not due sixty days after date ? If it be necessary to present the instrument in order to maintain an action on it, how does that affect the question of interest under the statute ? This is a question to be determined by our statute law, and for its solution we do not look to the laws, usages or customs of ocher places.

Persons not initiated in the mysteries of banking would take it for certain that such certificates would carry interest without interruption until they were paid, and, in their simplicity, would naturally suppose that the longer they were suffered to run, the more the bankers would be bencfittcd. If bankers wish to obtain the advantage sought in this case, there is no hardship in requiring them to express their contracts in such terms as will not mislead. The maxim, verba chartarun for-tius accipiuntur contra proferentem, is one of strict justice in its application to such contracts. It may be said that bankers will give a greater interest when deposites are made for a definite time than when made subject to the call of the depositor ; that after the deposite becomes payable, the banker must keep on hand money for its liquidation, and therefore should not be charged with interest. Banking may be carried on with money subject to call of: the owner, and our statute has fixed the rate of interest on money due by an instrument after its maturity.

Judge Ryland concurring, the judgment is affirmed; Judge Leonard dissents.


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    Snead, et al., Plaintiffs in Error, v. Wegman, Defendant in Error.
    1. In an action against a constable for the seizure of goods under an attachment issued by a justice of the peace, the record of the proceedings in the attachment suit is admissible in evidence.
    2. Though justices of the peace have a power of sale in attachment cases, they should exercise a sound discretion and not order a sale where the debt is small, and the attached property greatly exceeds in value the debt, and is of such a nature that it must all be sold together. The justice should always be satisfied that it would be for the interest of the debtor to have the property sold.

      Error to St. Loxiis Circuit Court.

    In December, 1852, two suits were instituted by attachment before John Black, a justice of the peace within and for the township of St. Louis, by one Small against one Snead. The writs of attachment were directed to Peter Wegman, then a constable of said township, who executed them by seizing a certain wood-boat, then lying at the wharf in St. Louis, as the property of said Snead, the same being in his possession and control. Afterwards, the justice ordered the constable to sell the wood-boat, as being property likely to perish, or depreciate in value, or the keeping of which would be attended with much loss or expense, in conformity with the 21st section of article 2d of the attachment act of 1845. Sale was made accordingly and report thereof filed by the constable. Pleas in abatement were put in by Snead ; the- cases were tried by a jury, who found for the plaintiff, and there was a judgment in his favor for the amount of tbe debt. The cases were appealed. Meanwhile this suit was brought by Snead and one Shelton, the administrator of one Cruch, deceased, being an action of trespass for taking and carrying away the wood-boat, against the justice, the constable, the security on the attachment bonds, and the plaintiff in the attachment suit. Dismissals were entered, however, as to all but Peter Wegman, who was the sole defendant in the case on the trial below.
    At the trial, plaintiffs introduced testimony tending to prove joint owne ship of Snead and Shelton’s decedent, the value of the boat, and the taking by defendant, and closed.
    The defendant then commenced his case, which put in issue Shelton’s interest or his decedent’s interest in the wood-boat, alleging it to have been the sole property of Snead, and justified the taking by reason of the fact that it was done by him as constable, in obedience to process as aforesaid. Defendant offered in evidence a transcript of all the proceedings by and before the justice, as aforesaid, to which plaintiff objected ; the court overruled the objection, to which overruling plaintiffs objected and took a voluntary non-suit, with leave, &c. After motion to set aside non-suit was made and overruled, plaintiffs brought the case he; e by writ of error.

      Woods and Buckner, for plaintiffs in error.

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

delivered the opinion of the court.

As this case was a suit against a constable for serving process in an attachment suit, the record of that suit was certainly evidence for him, as it did not appear upon its face to be a nullity, and as no specific objection was made to its introduction. If the plaintiff contemplated assailing the prima facie case made by the record for the defendant, the proper time for that would have been after the record was received. The record was evidence for the officer for some purposes, and being so, it was proper to receive it. Had it contained any thing objectionable, tbe other party should have moved the court to exclude it from the consideration of the jury. This is the invariable rule in all such cases. As the plaintiff took a non-suit merely because the record was received in evidence, when there was nothing showing that it was inadmissible, there was no ground for setting it aside.

The case of Markham v. Dozier & Pancost, (12 Mo. 288,) in which it was held, that a boat could not be sold under an execution issued by a justice of the peace, under the act concerning boats and vessels, is not applicable to the case under consideration. That case was under the statute concerning boats and vessels. The sale made here was under the attachment law. Under that law, perishable property attached by process may be sold by an order of a justice of the peace. The property sold in this suit was a wood-boat. Though justices have a power of sale, they should exercise a sound discretion, and not order a.sale where the debt is small and the attached property such as it must be all sold together, and greatly exceeds in value the debt. The justice should always be satisfied that it would be for the interest of the debtor to have his property sold, and should not listen to the too often interested suggestions of a constable. We perceive no irregularity in the constable’s sale. There was an application for the sale and an order thereon made by the justice, under which the constable proceeded in the conduct of the sale. The judgment is afBrmed ;

the other judges concurring.


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    Carson, Respondent, v. Ely, Appellant.
    1. The voluntary expenditure of work and labor upon the property of another, is not of itself sufficient to create a cause of action against the owner.

      Appeal from St. Louis Court of Common Pleas.

      Krum. & Harding, for appellant.

      Gantt, for respondent.
   LEONARD, Judge,

delivered the opinion of the court.

We have been a good deal perplexed in this case on account of the imperfect manner in which the plaintiff has stated in. the petition what we suppose he intended to rely upon as the ground of his action. The goods were to be transported from New Orleans to Chicago, and the Georgia, upon which they were shipped at New Orleans, had the privilege of delivering them at St. Louis, at which place the plaintiff, who was a forwarding and commission merchant there, as well as the agent of the St. Louis and Chicago Transportation Company, was designated in the bills of lading as the consignee. The plaintiff sought to recover for money advanced and the commission for advances and forwarding, on the alleged ground that he had sent the goods forward and paid out money to put them in order for that } urpo^e. The defendants insisted that their contract was exclusively with the St. Louis and Chicago Transportation Company ; that the plaintiff was not the consignee of the goods, and had no authority whatever to meddle with them, except as the company’s agent; and that if he bestowed any labor or expense on them, it was a voluntary act on his part, for which they were not liable.

The plaintiff contented himself with stating in his petition that he did the work and expended the money on the goods which he seeks to recover ; but he does not state that it was done at the defendant’s request, or that they promised to pay him for it; nor does he state even in general terms a legal liability on the part of the defendant to pay ; or that the plaintiff was the consignee of the goods, and had them in his possession as such ; or any other fact or circumstance from which we would be authorized to raise, as a matter of law, an implied promise or a legal liability on the part of the defendants to pay. The petition, we think, is clearly insufficient. It is impossible to say, as a matter of law, that one who voluntarily does work or expends money about the property or business of another, can recover on that ground only. Undoubtedly, when property is about to perisb, one wbo voluntarily takes such care of it as may be necessary for its preservation, ought to be allowed to recover to the extent, at least, to which the absent owners are benefited by the voluntary expenditure of labor or money ; but that is not the ground on which the plaintiff seeks to recover here, nor, indeed, 'would that principle be sufficient to support the recovery actually had.

It is to be observed that the defect we have pointed out is not a mere variance, within the meaning of the code, which does not prejudice the party who is guilty of the fault, unless the objection be taken advantage of at the time, but is the entire omission of a material fact necessary to be alleged and proved in order to entitle the party to relief. If, however, it were found that it was the duty of the plaintiff, as the original consignee, according to the course and custom of the trade, to secure and forward the goods, notwithstanding the subsequent arrangement of the owners with the Transportation Company, on the company’s refusing to do it under their contract, and that he did, in fact, so receive and forward them, acting for himself and not as the agent of the company, then it might be argued that what was omitted in the proof was sufficiently put upon the record by the finding, and that a reversal, under such circumstances, would be a reversal for a formal and not a substantial defect. There is no ground here, however, for such an argument, even if it could be allowed to prevail. The finding does not supply the omission in the petition, even if we suppose they could be supplied in this way. The court, it is true, found that the plaintiff was the original consignee of the goods, and that the Hillman declined taking them on account of the condition they were in ; but it is not expressly found that the company declined receiving the goods, nor is it distinctly found that the plaintiff received them in his individual capacity on account of the company’s declining to do so, and that he forwarded them, acting for himself and not as the agent of the company. We shall, therefore, reverse the judgment, in order that the cause may be retried. The plaintiff can then ask leave to amend bis petition, and, upon the trial, tbe question, we suppose, will be, whether it was tbe duty of the plaintiff, under tbe circumstances of tbe case, as tbe original consignee, to receive and forward the goods upon the Transportation Company’s declining to do so ; and whether, in fact, be did so receive and forward them, acting for himself, or whether what he did, in that respect, was done as the agent of the company, under their contract with the owner. ■

The judgment is reversed, and the cause remanded.


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    Sigerson, Appellant, v. Hornsby & Dent, Respondents.

    1. Judgment reversed and the cause remanded for farther proceedings.

      %. Qnere : what is the effect of the approval by the Secretary of the Interior, of Brown’s survey of Carondelet common?

      Appeal from St. Louis Circuit Court.

    This was an action in the nature of an action of trespass. Plaintiff claims the land, upon which the alleged trespasses were committed, under ihe town of Carondelet, as being a portion of the common of that town, south of the River des Peres. Defendants claim title under a confirmation by the act of July 4th, 1836, to Sophie Bolaye, or her legal representatives ; also by virtue of her having inhabited, cultivated and possessed the same prior to the 20th day of December, 1803.
    Whittelsey, for appellant.

      Shepley and Hill, for respondents.

       It is not conceived necessary by the Repórter to set forth the evidence offered on the trial of this cause.

   Scott, Judge,

delivered the opinion of the court.

The commons of Carondelet have long been a subject of litigation in our courts, and it is desirable, on many accounts, that this litigation should be terminated. There are, however, considerations operating on our minds which lead us to the belief that this case has not been presented in a way which will enable us to form a conclusion which will be final, so far as this court is concerned. After the trial of the cause in the court below, an event transpired which may have an influence in the adjustment of this controversy. The occurrence to which reference is made is the final approval of Rector’s or Brown’s survey, made by the Secretary of the Interior in February, 1855, since the trial of the cause in the court below.

If it should be thought that the position maintained in this cause by one of the parties, that, under the circumstances, there is no authority in any officer of the government to disturb this survey, might be made the point on which it should turn, it may be answered that there are difficulties in this view of the subject which have never yet been suggested in any argument in relation to the question, and which yet press themselves on our minds. The papers and documents in this cause show that the United States barracks, costing the government hundreds of thousands of dollars, are within the limits of the survey of Brown. These barracks, as appurtenant to them, claim upwards of 1700 acres of the land within that survey. The barracks were erected by appropriations of money, authorized by Congress, and a beginning of them was made prior to Brown’s survey. Under these circumstances, was there any authority in any officer of the government to approve a survey the effect of which was to pass the title to lands which had been appropriated by Congress ? Can it be said that the survey is approved, when 1700 acres of the tract are not lawfully within its boundaries ? What would be the effect of an approval -of a survey, by which a large portion of the tract surveyed was excepted from the survey ? Could the courts regard such an act as an approval ? Could the executive officers of the general government, by an act termed an approval, be permitted, in consideration of rights reserved to the United States, to sacrifice the rights of individuals ? Are they the guardians of the rights of the government alone ? Could they, at the expensé of individuals, make a conditional or qualified approval? would suck an approval be respected ? Should there have been a secret understanding between the officers of the government and Carondelet that an absolute approval of the survey would be made on condition that the town would afterwards convey to the government the barracks and their appurtenances, would the matter have been helped ?

The officers of the general government, as well as the committee of the Senate, seem to us to be laboring under a misapprehension as to the effect of an approval of the survey of the Carondelet common. They seem to suppose that when an approval is made, it will be competent to the courts to ascertain and determine the rights of the respective parties within the .survey. But in this, it would appear that the principle laid down in the case of Les Bois v. Bramell, (4 How. U. S. 449,) is overlooked. This case establishes the doctrine that an approved survey of the commons of a village, confirmed by the act of 18th June, 1812, is equivalent to a patent. Now the effect of a patent, not only on the rights of the United States, but of individual claimants, must be obvious. As to the individual claimants, the case to which reference has been made shows that an approved survey of commons, confirmed by the act of 1812, is a better title than a confirmation under the act of the 4th July, 1886. So the effect.of an approval of the survey is a final adjudication against the individuals claiming adversely within its boundaries. What principle will prevent the United States from being placed in the same category with the individual claimants, is to be found out by those to whom the management of its concerns are entrusted. So long as the survey wants an approval, our courts hold that the commons are not protected from the claims of those relying on a confirmation under the act of the 4th of July, 1836. (Dent v. The Inhabitants of Carondelet, 18 Mo. 284.) Whatever has been confirmed to Carondelet must remain hers. But what has been confirmedj it seems, is a question to be ascertained by the general government or its agents, if it has not already been done. Now, surely, it is competent to the government, with the assent of Carondelet, to settle this controversy on terms just to all those interested. If Carondelet will not come into terms, if she finds herself without a survey, she must take the consequences of her conduct.

As we are stating the difficulties which environ this controversy, although the consideration is not suggested by any thing contained in the record that we are aware of, yet we deem it not amiss to allude to it. We can not have shut our eyes to the different grounds on which Carondelet has presented herself in our courts since the litigation respecting her commons has arisen. In one case, she maintains that the survey of Brown is binding and conclusive on all parties ; in another, she questions the correctness or conclusiveness of that survey, and maintains that she is not concluded by it. There may be nothing in this. It has impressed itself on my mind, and if there is nothing in it, it may be explained away. The matter has never yet by the evidence in any case been brought to the knowledge of the court, so that it might be considered.

We wish it to be understood that there is no intention to express any opinion in relation to the questions to which allusion has been made. They arose in our reflections on the subject, and we deem that it would not be agreeable to the parties to have their rights determined in reference to them without first being heard. So, notwithstanding the delay, we judge it most advisable to remand the cause, in order that when it comes here again it may be finally determined.


author: Soott, Judge.

text:
    Funkhouser, Appellant, v. Hantz & Spalding, Appellants.
    1. See Sigerson v. Hornsby & Dent, ante (p. 268).

      •Appeal from St. Louis Land Court.

   Soott, Judge.

The only question in this case arises on the survey of the commons of Carondelet made by Brown. It will take the same course as the case just decided between Sigerson and Dent. The judgment will be reversed and the cause remanded. There being no point made in the court below in regard to the right of preemption, this court can not decide any thing in relation thereto.

The other judges concur.


text:
    Bridgman, Respondent, v. Bridgman et al., Appellants.
    1. A submission to arbitrators in writing is within the statute, although there is no clause authorizing a circuit court judgment to be entered upon the award made pursuant to the submission; so that an oath taken by the arbitrators, where the submission is in writing, but does not contain the above clause, is not a mere voluntary oath.
    2. Where it is sought by a motion under the statute to vacate an award, it is not sufficient to show that the arbitrators erred in judgment merely, either as to the law or fact; partiality, corruption, or some one of the statutory grounds for vacating such award, must be shown.

      Jlppeal from, Ste. Genevieve Circuit Court.

      T. C. Johnson, for appellants.
    I. Tbe first submission under wbicb the arbitrators were sworn was abandoned. An entirely different one was made and they acted under it, but were not sworn. The law is express, that, “ before proceeding to bear any testimony, the arbitrators shall be sworn faithfully to hear and examine the matters in controversy, and to make a just award according to the best of their understanding.” (R. C. 1845, sec. 8, p. 122.) The oath they take must be in writing. It is not for them to prove that they were sworn according to law. What oath they actually took must appear, and then it is for the court to say whether the oath was a compliance with the law. The action of the arbitrators under the second submission, without taking the preliminary oath and reducing it to writing, is null and void.

      Noell, for respondents.
   LEONARD, Judge,

delivered the opinion of the court.

There is no error in this record. The plaintiff proceeded for a judgment upon the award under the statute, but the defendants, treating it as a common law action, put in an answer to it as such, and also instituted proceedings on their part to vacate the award, upon the several.grounds designated in the statute as sufficient for that purpose. The court treated both as proceedings under the statute; on the one side to cpnfirm, and, upon the other, to vacate the award. The original submission was in writing, but contained no agreement that a circuit court judgment might be rendered upon the award, and, under this submission, the arbitrators were verbally sworn pursuant to the act. Afterwards, the parties, by agreement, in effect amended the original submission by executing a new submission, with the omitted clause, allowing a circuit court judgment, but otherwise of the same tenor, and the arbitrators then proceeded to act without being re-sworn. Upon the hearing in the Circuit Court, this irregularity was insisted upon as a ground for vacating the award, and the defendants also offered evidence to show that they were not indebted to the plaintiff as the arbitrators had awarded, which was rejected.

If, in order to bring a submission within the statute, it be necessary that it should not only be in writing, but should also contain the clause allowing a circuit court judgment to be entered upon the award, the oath of the arbitrators, at the time it was taken, was unauthorized by law and voluntary ; and if so, their acting, without being lawfully sworn, might, perhaps, be considered such misbehavior on their part as to vacate their award. We think, however, that all written submissions are within the statute, and that the section prescribing the official oath, as well as the other sections of the act that are not specifically confined to a submission authorizing a circuit court judgment to be entered, are equally applicable to both classes. And there is nothing in Mahan v. Berry (5 Mo.) conflicting with'this opinion, as that case seems to have been decided under the act of 1825, •which, in many respects, is different from the act of 1835, of which the present act is a copy ; and, at any rate, the submission there was not in writing, but by parol, and for that reason alone was clearly out of all the acts we have ever had on the subject. But, in 1835, the legislature, with a view, it would seem, to regulate this subject more fully than it was regulated by the existing law, adopted, substantially, the New York revised act, and the construction we now adopt is the same put by the New York courts upon their act, and seems to be justified not only by the language of the legislature, but to be the most beneficial construction considered practically. (Cope v. Gilbert, 4 Denio, 347, and Bloomer v. Sherman, 5 Paige, 578.)

In a proceeding like the present, the question is not whether the arbitrators, who are the final judges both of the law and the fact, selected by the parties themselves, have erred in their judgment in respect to either, but whether they have been guilty of partiality or corruption, or of any other misconduct prejudicial to the rights of the parties, or have failed to make a final mutual and definite award, or whether their award was procured by fraud or other undue means ; but the testimony here offered and rejected was to prove that the arbitrators had erred in judgment, and ' not to establish any of the legal grounds of relief to which we have referred, and was therefore properly rejected. The judgment must be affirmed;

Judge Scott dissenting.


text:
    Papin, Plaintiff in Error, v. Hines, et al., Defendants in Error.
    1. The inhabitation, cultivation and possession required by the act of Congress of June 13th, 1812, are actual possession, &c.
    2. It is a fatal objection to a claim of title under this act, that it does not appear from the report of the commissioners that the concession .contained a special location, or that it had been actually surveyed before March 10th5 1804, by a surveyor duly authorized by the government making the grant.

      3. The act of Congress of April 12th,1814, does not, proprio vigore, confer a • legal title.
    4. In a suit brought by A., claiming under the act of July 4,1836, against B., claiming under a patent dated June 15th, 1826, it will be of no avail to A. to prove that the land sued for is embraced within the outboundary line of the town of St. Louis. The patent will, in such a contest, prevail over the confirmation.

      jError to St. Louis Land Court.

    Tbe facts sufficiently appear in tbe opinion of tbe court.

      Reber and Buckner, for plaintiff in error,
    cited Gamache v. Pequinot, 17 Mo. 810, 825; City of St. Louis v. Toney, 21 Mo* 243.

      Shepley and Todd, for defendant in error,
    cited Sarpy v. Papin, 7 Mo. 503; Menard’s beirs y. Massey, 8 How. 293 ; Burgess v. Gray, 16 How. 48.
   RylaND, Judge,

delivered tbe opinion of tbe court.

Tbe plaintiff claims tbe land involved in this controversy under three different and independent confirmations, wbicb be alleges were made of tbe Spanish title of Joseph Brazeau. He asserts that tbe tract, including tbe land in dispute, was a lot belonging to tbe town of St. Louis, possessed by Brazeau prior to tbe 20th of December, 1803, and that bis title thereto was confirmed by tbe act of 13th June, 1812. He next asserts that if Brazeau’s title was not confirmed by tbe act of 1812, tbe claim was so spread upon tbe report made to Congress by tbe commissioners of tbe first board, that it was confirmed by tbe act of 12th April, 1814 ; and lastly, be asserts that tbe title of Brazeau was confirmed by tbe act of 4th July, 1836. Tbe defendants claim tbe possession of tbe land under a patent issued by tbe United States on tbe 15th June, 1826, under an entry in tbe land office.

We will examine the different pretensions set up by tbe plaintiff under tbe several confirming acts of Congress. We have not here any recognition of tbe title to this tract of land by tbe United States authorities as a title confirmed by tbe act of 13th June, 1812, nor would it appear that any person interested in the claim ever supposed that the title was confirmed by that act; but, on the contrary, both the claimant and the government evidently supposed that the title required a confirmation by the board which was organized under the act of 1832 ; for before that board the claim was presented by the claimants, and the report upon it was confirmed by the act of July 4th, 1836.

It is apparent that Brazeau asserted before the first board of commissioners three claims, and that the board acted upon them as three distinct claims ; the first for ten arpens in front on the river, extending to the road to Carondelet, as conceded to him in 1786 ; the second for two arpens in front on the river, with the same depth, which he had acquired from Benito Yasquez ; and the third for an augmentation, conceded to him in 1799. The first of these claims was approved of and ordered to be surveyed ; the second was at first rejected, but afterwards ordered to be surveyed; and both were afterwards regularly surveyed for him by the authorities of the United States. The claim under the concession of 1799 was rejected, and this is the claim which includes the land in controversy. The evidence shows possession of the first two tracts under the Spanish government and continued cultivation ; but, in respect to the land included within the concession of 1799, there is no evidence of possession.

The confirming act of 13th June, 1812 rests upon the actual possession, for that is the sole consideration which influenced Congress to make the confirmation. It is not a question, under that act, whether the claimant had a concession from the Spanish government or not; or whether there was a survey under that government or not. If there was a lot inhabited, cultivated or possessed coming within the designation contained in the act, it was confirmed without any regard to Spanish title. The possession, then, was not to be a possession inferable from title, but an actual possession — possessio pedis. In order to answer this demand of the act, resort is now bad to tbe actual possession of tbe land east of tbe Caron-delet road, and acted upon by tbe first board of commissioners as aforesaid, tbe virtue of wbicb is to be transferred to tbe land included in tbe concession of 1799. But if we bear in mind that tbe act of 1812 does not rest upon written evidence of Spanish title, and that at tbe date of that act tbe claims of Brazeau were not only separate by tbe mode in wbicb they were presented and prosecuted before tbe board of commissioners, but were further separated by the action of tbe board as aforesaid, we will find that tbe act of 1812 never contemplated tbe confirmation of a tract of land separately granted and claimed, and of wbicb there had been no actual possession. Tbe possession of tbe land east of tbe road bad been established before tbe commissioners, and bad bad its influence in producing the action they bad taken thereon, but bad no influence with them in relation to tbe distinct claim west of tbe road. To interpret tbe subsequent act of 1812, so as to give a title to this land without an actual possession of it, would be to give tbe land without tbe consideration which prompted to the passage of the act. This view dispenses with tbe consideration of all questions as to whether a tract of land, which has never been recognized by the United States as a lot upon which the act of 1812 operated, and wbicb has never been claimed under that act, can be now supposed to be confirmed by that act merely because it is included within tbe outboundary line. Tbe claim can not be regarded as confirmed by tbe act of June 18th, 1812.

I will next consider tbe confirmation alleged to have been made by the act of the 12th April, 1814. This act provides for the confirmation of claims under incomplete French or Spanish grants or concessions, warrants or orders of survey granted prior to the 10th March, 1804, to persons residents of Louisiana, where the claims have been filed with the recorder according to law, and are embraced in the report of the commissioners, where it shall appear hy the report of the commissioners that the concession, warrant, or order of survey, under which tbe claim is made, contains a special location, or bad been actually located or surveyed before the lOtb March, 1804, by a surveyor duly authorized by the government making such grant. The act, after describing the claims upon which it is intended to operate, declares that the claimants u shall be and they are hereby confirmed in their claims.” There are to the first section, which is the only one applicable to this case, several provisos, one of which declares that the section shall not be held to confirm the claim of any person in his own right, who has received in his own right a donation grant from the United States in the territory. The second section applies to certain claims to donations under the laws of the United States, which are claims founded upon actual settlements. This section has no relation to claims such as Brazeau’s. The third section of the act makes it the duty of the recorder, who was in possession of the records of all claims regularly filed, as well as those which had been confirmed, and those which remained unconfirmed, to issue to the surveyor orders of survey for such claims, confirmed by the act, as required surveys to be made, and to give certificates of confirmation upon the return of the surveys ; and also to issue certificates of confirmation in cases where no survey was required. These certificates of confirmation entitled the parties to patents for the land, “ if it should appear to the commissioner of the general land office that such certificates had been fairly obtained according to the true meaning and intent of the act.”

There are two objections to the claim now set up by the plaintiff under the act; the first is that the report of the commissioners does not show that the claim of Brazeau contained a special location, or that it had been actually surveyed before the 10th March, 1804, by a surveyor duly authorized by the government making the grant. It is evident that if a party can be permitted to assert a claim under this act without any evidence of title having been issued by the land department, it must be by showing that the claim comes within the language of the act. All that the act requires to be shown by the report, in order to a confirmation of a claim, must appear upon the face of the claim itself, and is not to be shown by extrinsic evidence. The report and the act form the claimant’s title. In this case, the report, so far as we see the proceedings of the board of commissioners, states the date of the concession and the date of the survey, but does not show by whom the survey was made; so that the report does not, according to the requirement of the act, show “ that the claim was actually located or surveyed before the 10th day of March, 1804, by a surveyor duly authorized by the government making the grant.” This is a fatal objection to a title which depends upon the act and the report for its legal effect.

The second objection is, that this act never contemplated the assertion of a title under it, without the documentary evidence which is to be issued by the officers of the land department. The act of 18th June, 1812, confirms claims by its own force, and makes no provision for the future examination of the claims or the issuing of any evidence of title by any of the officers of government. It is the universal understanding that this act completes the title by its own terms, and leaves the facts, by which the grantee is to be ascertained, to be proved by witnesses. But the act of 12th April, 1814, not only provides for an order of survey and a certificate of confirmation, but makes the completion of a title by the issuing of a patent to depend upon the commissioner of the general land office being notified that the certificate of confirmation was fairly ob- ' tained. These provisions of the act evidently intend to keep in the hands of the land department of the government the power to determine upon the question whether each particular claim comes within the confirming force of the act; and this is more evidently the meaning of the act, when we find that the provisos to the first section (which is the section applicable to Brazeau’s claim) except from the confirming language of the section, not only claims which had been adjudged by the board to be antedated or fraudulent, and claims for a larger quantity than a league square, but also the claims of persons who, in their own right, had a donation grant from the United States. The recorder, who was in possession of the records of all claims filed, and of the decisions of the board thereon, could ascertain, by reference to the records in his possession, whether a claim had been adjudged to be antedated or fraudulent, and he could ascertain whether the claimant had received a donation grant in the territory. Upon such investigation as he was to bestow upon each claim, he was to issue his certificate of confirmation, and still the claimant, after obtaining such certificate, was to satisfy the general land office that the certificate was fairly obtained. To construe this act so as to give it the force of the act of 1812, and make it operate a confirmation by its own terms, without regard to the action of the Land Department, would be to substitute the action of the judiciary for the action of the executive department, which the act evidently designed to entrust with the examination and completion of the title. Such construction would be repugnant to the obvious design of the act. The claim of Brazeau can not be treated as a claim confirmed by the act of 1814.

I will consider • now the confirmation of the claim under the act of 4th July, 1836. As the defendants have exhibited a patent issued by the United States in 1826, upon a sale of the land in controversy, it might be sufficient to dismiss this question by saying that the second section of the act of 1836 has been adjudged by the Supreme Court of the United States to afford protection to all who previously purchased land against the claims confirmed by that act. But it is now alleged by the plaintiff that the land in controversy is within the outbounda-ry, of the town of St. Louis, and consequently never was subject to sale or entry. It is not easy to perceive how this fact can benefit the plaintiff. He must recover upon the strength of his own title, and if the defendant’s title is valid against him, it will not help him in the action to show that there may be another and third party, who may set up another and distinct title against the defendant. The lands included within the outboundary of the town were only withdrawn from sale, because they were either confirmed to individuals or reserved for the use of schools. A reservation for the use of schools can not be set up against the patent of the government by a plaintiff who has no connection with or title under that reservation. It could not benefit him even if he could show that there had been a regular designation and setting apart of the land for the support of the schools. Such designation certainly would not strengthen his title. The case, then, in this branch of it, is to be regarded as depending upon the plaintiff’s confirmation under the act of 1886 and the defendant’s patent of 1826, and, as such, it is disposed of by reference to the case of Menard v. Massey. I am therefore for affirming the judgment of the Land Court; and, the other judges concurring, the same is accordingly affirmed.