author: Ryland, Judge,

text:
    Patterson et al., Plaintiffs in Error, v. Camden, Defendant in Error.
    1. In determining the meaning of a written instrument, the acts of the parties thereto are entitled to great weight.
    2. Where a partnership is dissolved and a new partnership formed, the debts of the old firm may, by consent of all parties — the creditors, the old firm and the new — fee transferred to the new firm, and the old firm may be discharged.

      JBrror to St, Louis Circuit Court.

    This was an action of assumpsit, commenced in the St. Louis Circuit Court in the year 1841. The declaration consisted of six counts, four of which charged the defendant, John B. Camden, as drawer of two bills of exchange, of which-the following are copies:
    “Exchange for $1689 35. Philadelphia, 24th October-, 1839. Six months after date of this first of exchange, second of tlie same tenor and date unpaid, pay to tbe order of Robert Patterson & Go., sixteen hundred and thirty-nine thirty-five hundredths dollars, value received, and charge the same to account of your obedient servants. [Signed] T. T. Leavel & Co., in liquidation. To Messrs. T. T. & H. Leavel, New Orleans.”
    “Accepted, payable at the counting-house of Buckner, Stanton & Go., New Orleans. [Signed] T. T. & H. Leavel.”
    “ Exchange for $1706 05. Philadelphia, 28*th January, 1840. Thirty-five days after date of this first of exchange, second of the same tenor and date unpaid, pay to the order of Robert Patterson & Go., seventeen hundred and six five-hundredths dollars, value received, and charge the same to account of [Signed] T. T. Leavel & Co., in liquidation. To Messrs. T. T. & H. Leavel, New Orleans.”
    “ Accepted, payable at the banking-house of Forsyth & Limerick, New Orleans. [Signed] T. T. & H. Leavel.”
    There were also counts for goods sold, money had and received, &c., and upon an account stated. To the first four counts the defendant pleaded the general issue, set-off, and payment; he also pleaded that the sums sought to be recovered were for articles in a store account, and that the cause ■ of action did not accrue within two years before the com.mencement of the suit.
    At the trial evidence was given proving and tending to prove that prior to the 5th day of February, 1839, a firm existed in Manchester (afterwards called Yazoo city), in the ¡state of Mississippi, composed of Thomas T. Leavel, John B. Camden, and Marbel Camden, under the name and style of T. T. Leavel & Go.; that Leavel was the acting partner, the Camdens residing in St. Louis; that during the period of the partnership the firm of T. T. Leavel & Go. had large ..transactions with the plaintiffs; that in January, 1839, the firm of T. T. Leavel & Go. ordered of plaintiffs brandy to the ¡amount of $1468 75, which was sent them, and the expenses ¡of porterage and insurance on it paid by plaintiffs, amounting to $44 50. On the 5th of February, 1839, the partnership of T. T. Leavel & Co. was dissolved, T. T. Leavel having bought out the interest of the Camdens for 111,000, and the following notice was published in the paper published in Manchester, and also in the United States Gazette at Philadelphia: “Notice. — The partnership heretofore existing between the undersigned, under the name and style of T. T. Leavel & Co., is this day dissolved by mutual consent. Those having claims against the late firm will present them to T. T. & H. Leavel for settlement. Those indebted to them will make payment to the same. The name of the old firm may be used in the settlement of the old business. Manchester, Mississippi, February 5, 1839. [Signed] T. T. Leavel, Mar-bel Camden, John B. Camden, by his attorney, Marbel Camden.” That immediately upon the dissolution of the firm of T. T. Leavel & Co. a new firm was formed of T. T. Leavel and his brother, under the style of T. T. & H. Leavel; that T. T. Leavel went to Philadelphia in March, 1839, when he met John B. Camden; and that while there, with the knowledge and approbation of said Camden, he drew drafts in settlement of the liabilities of the firm of T. T. Leavel & Co. to plaintiffs, in the name of “ T. T. Leavel & Co. in liquidation that this was done in order to give the old firm time. Plaintiffs introduced evidence tending to prove that the draft for $1636 35 was given for the brandy bought before the dissolution on the 15th of January, 1839, with interest and exchange added; and that the draft for $1706 65 was given in settlement of another draft of $1500, dated at Philadelphia March 8, 1839, and drawn by T. T. Leavel on T. T. & H. Leavel, in favor of J. B. and M. Camden, and endorsed by them, which was at its date delivered by T. T. Leavel and J. B. Camden to plaintiff, Robert Patterson, he at the time paying them the amount of the same in cash for the purpose of liquidating other liabilities of the firm of T. T. Leavel & Co. to other persons, which draft Robert Patterson at once transferred to plaintiffs ; that T. T. Leavel had drawn in the name of “ T. T. Leavel & Co., in liquidation,” other drafts as well as the ones in suit, with the knowledge of defendant, and without objection ; as also that due notice was given of the presentment of the drafts and the non-payment thereof. Defendant introduced evidence tending to prove that Thomas T. Leavel, in 1838, visited St. Louis for the purpose of buying out the interest of the Oamdens in the firm of T. T. Leavel & Co., and offered therefor $15,000; that the firm of T. T. Leavel & Co. did not owe the plaintiff any thing; also various receipts of plaintiffs for money paid by T. T. Leavel & Co.; also a memorandum signed by T. T. Leavel, dated at Philadelphia, March 19, 1839, of endorsements by J. B. and M. Camden, of various drafts of T. T. & H. Leavel, which were given to settle up the old business of T. T. Leavel & Co.
    The plaintiff asked the following instructions: “ 1. If the jury find from the evidence that the plaintiffs were a mercantile firm, located and doing business in Philadelphia, and that the defendant was a member of the mercantile firm of T. T. Leavel & Co., located and doing business in another state, the state of Mississippi, and that the claim of the plaintiffs in this action originated in mercantile dealings between said two firms for merchandise sold and moneys advanced by plaintiffs to and for said T. T. Leavel & Co., and for their benefit, in dealing as merchants, then any balance due from said T. T. Leavel & Co. to plaintiffs, on said transactions, is not subject to the limitation of two years provided by law for articles in a store account; nor is any portion of such balance, if any be due, which was for moneys advanced, included in the limitation of the act of assembly provided for upon accounts for goods, wares and merchandise sold and delivered. 2. If the jury find from the evidence that plaintiffs were a mercantile firm, and that T. T. Leavel & Co. were also a mercantile firm, composed of T. T. Leavel, Marbel Camden and John B. Camden ; that T. T. Leavel & Co. became indebted to said plaintiffs in mercantile transactions for merchandise sold before the dissolution of said firm of T. T. Leavel & Co.; that the notice of dissolution read in evidence in this case was issued and published by authority of defendant; that T. T. Leavel, by defendant’s authority and consent, had charge of the business of T. T. Leavel & Co., and of the closing up and settling the same after its dissolution, and that in so closing up and settling the same he executed the drafts of 11689 35 sued on, then such drafts bound said defendant as a drawer thereof. 3. If the jury believe from the evidence that the drafts sued on in this action and given in evidence by plaintiffs, or either of them, were drawn by the authority or consent of the defendant, they must consider him as originally bound as drawer of such draft, and such authority and consent may be either verbal or written, or implied from circumstances. 4. That knowledge by defendant, if proven, that T. T. Leavel & Co. drew drafts signed “ T. T. Leavel & Go.,” in liquidation,” and delivered them to creditors of that firm on account or in liquidation of its debts, after its dissolution, without any manifestation of disapprobation on the part of defendant, is evidence tending to show an authority from him for their being so drawn. 5. That if the jury believe from the evidence that at the time of the dissolution of the firm of T. T. Leavel & Co. said firm was indebted to the plaintiffs on promissory notes, and that the drafts sued on in this action or either of them were given after the dissolution of said firm by T. T. Leavel for said indebtedness to the plaintiffs, and accepted by them in good faith, and that said T. T. Leavel was at that time authorized by the defendant to close up the business of said firm, they will consider the defendant as a drawer of such drafts and originally held as such. 6. But if the drafts sued on in this action were never binding on the defendant, and they or either of them were given for promissory notes of T. T. Leavel & Co. to plaintiffs, then the plaintiffs may recover on the original account or cause of action for which said notes were given under the money counts, and the notes are prima facie evidence of such consideration. 7. That if the jury believe from the evidence that the drafts sued on in this action; or either of them, were made in good faith by T. T. Leavel, in the name of T. T. Leavel & Co., in liquidation for a debt or debts due from T. T. Leavel & Co. before dissolution, and in the course of the settlement of the business of said firm were in good faitb delivered to and received by the plaintiff, then, even if not binding as drafts on the defendant, they are evidence of an account stated in favor of the plaintiffs.” The court thereupon gave the third instruction asked for, but refused to give the first, second, fourth, fifth, sixth and seventh instructions asked by plaintiffs.
    The defendant asked the court to give to the jury the following instructions : “1. If the jury find that the two new bills of exchange mentioned in the declaration of the plaintiffs were drawn by T. T. Leavel after the dissolution of the firm of T. T. Leavel & Co., and after notice of such dissolution to the plaintiffs, and without authority from the defendant, then the plaintiffs are not entitled to recover in the present action upon the said bills of exchange. 2. The terms of the dissolution of the firm of T. T. Leavel & Co., as contained in the publication read in evidence, did not confer upon T. T. Leavel authority to draw the bills of exchange in question so as to bind the defendant. 3. If the jury find that the bills in question were drawn by T. T. Leavel, without authority from the defendant, after the dissolution of the firm of T. T. Leavel & Co., and notice thereof to plaintiffs, and were accepted by plaintiffs in payment of a pre-existing debt of T. T. Leavel & Co., then said debt was extinguished by the said bills, and the plaintiffs are not entitled to recover in the present action in respect to such pre-existing debts. 4. If the jury find that the plaintiffs, in January, 1829, were grocers, and then sold and delivered to the firm of T. T. Leavel & Co. a quantity of brandy and charged the same in account to said firm, then the plaintiffs were barred of their suit against the defendant to recover on the account for said brandy after the lapse of two years. 5. If the firm of T. T. Leavel & Co. was dissolved and an arrangement made by which the new firm of T. T. & H. Leavel took all the assets of the old firm and assumed the payment of all its debts, and if after notice of such dissolution and arrangement the plaintiffs took for their debt against the old firm the acceptance of the new firm on bills drawn by T. T. Leavel, then the plaintiffs are not entitled to • recover of the defendant in respect to such debt. 6. If tbe old firm of T. T. Leavel & Co. was dissolved and the new firm of T. T. & H. Leavel constituted in its stead, consisting in part of different members, and receiving the assets and assuming the debts of the old firm, and the plaintiffs, being creditors of the old firm and knowing its dissolution and the arrangement by which the new firm had assumed its debts, gave an extension of time of payment to the new firm on the debt of the old firm by receiving time bills accepted by the new firm without the consent of the retiring members of the old firm, then the retiring members were discharged by such extension of time of the debt to the plaintiffs.”
    The foregoing six instructions moved by the defendant were given by the court. The jury found a verdict for the defendant.

      Shepley, for plaintiff in error.
    I. Upon the dissolution of a firm it is competent for the partners to agree that the name of the old firm may be used in the renewal of notes and drafts, or in the transaction of any business of the late partnership.
    II. The notice of dissolution in this case was designed to give and does give power to use the name of the firm in renewing the maturing obligations of the firm. What is the old business about which the name of the firm is authorized to be used ? The goods had all been sold. There were then but two tilings remaining — the debts due to the firm and the debts due by the firm. The power given had certainly no reference to the debts due to the firm for two reasons, 1st, because after dissolution either partner may receive and receipt for a debt due to the firm unless there is some prohibition the knowledge of which must be brought home to the debtors (Story on Part. § 473) ; 2d, because in the notice of dissolution it is stated that the new firm are entitled to receive payment of debts due the firm. The receipt of the new firm was then amply sufficient to discharge the debt due the old firm. The power then conferred was intended to operate only upon debts due by the firm. The debts of the old firm could be settled only by either paying them in cash or property, by giving the paper of the other people for them, or by renewing the paper or the debt. In payment the name of the old firm can not be used, nor can it be used in a settlement of the debts in any other way except in a renewal of the indebtedness. As it can only be used in the matter of renewals, it is not only a fair construction of the language that this power was intended to be given, but it is the necessary construction. (See Whitehead v. Bank of Pittsburg, 2 Watts & Serg. 172; 3 Watts & Serg. 347; Bobinson v. Taylor, 4 Barr, 242; Brown v. Clark, 2 Harris, 468 ; Meyer v. Huggins, 1 Strobh. 473 ; Smith v. Winter, 4 Mees. & Weis. 454; Barton v. Isitt, 4 Barn. & Aid. 206.)
    III. If the drafts sued on were, from want of power, never binding on defendant, then they were nullities, and as to the $1639 35, the plaintiffs are remitted back to the promissory notes for which the draft was given. (Perrin v. Keene, 19 Maine, 355.)
    IV. Even if the notes were never binding, yet, having been given by the settling partner, they are evidence of an account stated. (Motherson v. Bathbone, 11 Wend. 96; Draper v. Bissel, 3 McLean, 275; Davis v. Jesangue, 5 Whart. 530; Bobinson v. Naylor, 5 Barr, 242; Luckie v. Forsyth, 3 Jones & Lat. 388.)

      H. R. Gamble, for defendant in error,
    cited Story on Part. § 155,156, 322; Long v. Story, 10 Mo. 637; Pope v. Bisley, 23 Mo. 186; Bell v. Morrison, 1 Pet. S. C. 367; 1 McMul. 210; Humphries v. Chastain, 5 Georg. 166 ; National Bank v. Norton, 1 Hill, 572; Martin v. Kirk, 2 Hump. 529; 1 Smith (Ind.) 129; Sandford v. Mickle, 4 Johns. 224; 2 Dess. 43; Evans v. Drummond, 4 Esp. 89; Beed v. North, 5 Id. 122; Thompson v. Percival, 3 Nev. & Man. 167; Hast v. Alexander, 2 M. & W. 483; Isler v. Baker, 6 Humph. 85 ; Oakley v. Pasheller, 10 Bligh, 589.
   Ryland, Judge,

delivered the opinion of the court.

The record and proceedings in the court below show nothing which is relied on in this court for reversing the judgment until we come to the instructions asked and refused, as well as given and excepted to. The points then which have received our consideration arise on these instructions. It will be seen by the statement of the case that the court gave the third instruction asked for by the plaintiff and refused the others, and also that the court gave the six instructions asked for by the defendant.

Without minutely noticing each one of these instructions prayed for by the plaintiffs and refused, it is the opinion of this court that there is no error in refusing those not given ; nor do we consider that the court erred in giving for the defendant the first, third and fourth instructions asked for by defendant. As to the second instruction we think it unnecessary to give any opinion in regard to the meaning of the words used by the parties in the notice of dissolution as they appear on the face of the instrument. We need not say what in law is the meaning of the terms employed in the notice, nor is it necessary for us to declare the meaning or extent of the power given by the notice considered as a mere instrument itself. The practical construction of the notice given by the parties themselves, or the acts of the parties in regard to the subject matter under the notice, may be properly looked to — properly taken into consideration, in order to ascertain what meaning the parties intended to attach to the instrument, and what power was intended by the partners to be used by T. T. Leavel. From all the acts done, and all the circumstances surrounding or attendant on the acts done, in regard to the dissolution and settling or winding up of the old firm, inferences may be drawn showing the meaning practically which the partners had when the notice was given, and what was their intention when the notice was thus drawn. This practical construction given by the parties themselves is a proper guide to its meaning, and is of more importance than wbat is the abstract meaning which this court may attach to its mere phraseology. (1 Stohb. 479.) “ The business of a court and jury is to ascertain the meaning and intention of the parties in making an agreement, and to carry that into effect if it is consistent with law. I know of no better mode of ascertaining this meaning than is shown if all parties acted on a particular meaning.” (2 Watts & Serg. 175.)

We consider that the fifth instruction is calculated to mislead the jury. The proposition of law contained in it we do not controvert, but we consider it not warranted by the facts of the case preserved in proof. The instruction is in these words: “ If the firm of T. T. Leavel & Co. was dissolved and an arrangement made by which the new firm of T. T. & H. Leavel took all the assets of the old firm, and assumed the payment of all its debts, and after notice of such dissolution and arrangement the plaintiffs took for their debt against the old firm the acceptances of the new firm on bills drawn by T. T. Leavel, then the plaintiffs are not entitled to recover of the defendant in respect to such debt.” This may well be so, but here the bills are drawn in the name of the old firm — T. T. Leavel & Co,.pin liquidation ; now, although T. T. Leavel may himself have drawn these bills, yet when the bills in the name' of the firm of T. T. Leavel & Co., in liquidation, are received by the plaintiffs, we can not say but that they may have been so received in good faith, the plaintiffs really supposing that T. T. Leavel had the power to sign the same. Then this instruction may have misled the jury, the bill not being in the name of T. T. Leavel, but of T. T. Leavel & Co., in liquidation, yet made and drawn by T. T. Leavel. The plaintiffs may have thought that he had the power to use the name, and by receiving the bills in the name of the old firm they did not intend thereby to rely alone on the new and discharge the old. The expression “ took the bills for their debt” is too loose. This may likewise have had a bad effect on the jury. (Story on Part. § 155 and note 2.) If the bills had been signed by T. T. Leavel alone, drawn by him in his own name on the new firm of T. T. & H. Leavel, and the plaintiffs had taken and accepted them in payment or satisfaction of the debt of T. T. Leavel & Co. to them, then the old firm may have been discharged from such debt; and if the bills were drawn by T. T. Leavel, and he, without any authority, signed the name of the old firm to the bills, and this was known to the plaintiffs, and they accepted such bills in payment of the debt of the old firm, then the instruction might have been proper. But as it is, we consider it may have misled the jury to the plaintiffs’ injury, and in this the court below committed error. The sixth instruction is improper for the same reasons as the fifth, and should not have been given. The doctrine of extension of time is not considered by us as properly arising on the bills as they have been drawn in the case, and therefore is not passed upon by the court.

So much for the points arising on the instructions. As the case has to go back, it may be well to refer to some general principles of law which may be considered applicable to a proper determination of the controversy. (.Story on Contracts, § 244, 246 ; Story on Partnership, § 156, 328 ; 1 Mc-Mullan’s Rep. 209; 1 Strob. 499.) “It is clear that the mutual agency of the partners which is created by the partnership ceases when it is dissolved, and that after dissolution neither can make a note or any other contract binding on the other partners unless he is authorized by them so to do. It is not necessary that this authority should be created by a special power of attorney or other instrument, but may be conferred by parol. The transactions of trade by their daily frequency and necessary promptness do not admit of formal and precise stipulations. Usage and custom of merchants to a great extent determine the import and effect of brief expressions ; and good faith, the necessary element of trade, must supply, from the character and objects of the agreement, the intention of the parties.” (Myers v. Huggins & Stein, 1 Strobh. 477.)

There is no doubt that the law is well settled that if one partner goes out of a firm and another comes in, the debts of the old firm may, by consent of all three parties — the creditors, the old firm and the new — be transferred to the new. (Hart v. Alexander, 2 Mees & Weis. 484.) If in this case the Pattersons, after notice of dissolution of the firm of T. T. Leavel & Co., continued to deal with and extend credit to T. T. & H. Leavel, then they have no right to look to the old firm of T. T. Leavel & Co. for such indebtedness created after notice of the dissolution of the old firm; and if upon notice of the dissolution they afterwards accepted drafts drawn by T. T. Leavel, in the name of the old firm, on the new firm of T. T. .& H. Leavel, for the indebtedness to them of the old firm, and from time to time continued to give credit to the new firm by a renewal of the drafts, they can not be after-wards allowed, upon the failure of the new firm, to call upon the old firm for payment, unless such drafts and such renewals were shown to be made with the consent of the old firm.

If upon the new trial it shall appear that the drafts in suit were for indebtedness created by the new firm after the plaintiffs knew that the old firm had dissolved partnership, then, unless these drafts were drawn by the consent and authority of the old firm, they can not be bound by it. Let the judgment below be reversed and the cause remanded for further trial;

Judge Scott concurring ; Judge Leonard absent.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas, Respondent, v. Wyatt, Appellant.
    1. A patent to a fictitious person is a nullity.

      Appeal from, St. Louis Land Court.

      S. Leber and T. J. Beirne, for appellant.
    I. The only question in this case is whether the holder of a junior patent will be allowed to defeat an older patent for the same land by showing that the grantee named in the latter is a fictitious person. It seems to be too well settled by authority, and too obvious in reason and common sense to admit oi debate, that to every valid grant there must be a grantee capable of taking. (Collins v. Brannin, 1 Mo. 540 ; Gallway v. Einley, 12 Pet. 297 ; Galt v. Gallway, 4 Id. 345 ; McDonald’s heirs v. Smalley, 6 Id. 281; McCracken’s heirs y. Beall & Bowman, 3 A. K. Marsh. 1080.)

      J. D. Coalter, for respondent.
    I. It is impossible to prove that no such person as Samuel Johnson existed. The most that any one witness can swear on that subject is that he did not know a Samuel Johnson. The patent of the United States is conclusive on this point. (Alison v. Hunter, 9 Mo. 758; Gamble v. Barry, 8 Mo. 94 ; Jennings v. Whitaker, 4 Monr. 50; Jackson v. Marsh, 6 Cow. 281; Jackson v. Lawton, 10 Johns. 23; 1 Hen. & Munf. 306 ; Polk’s Lessee v. Wendall, 9 Cranch, 99.)
   Ryland, Judge,

delivered the opinion of the court.

This was an action of ejectment for a tract of land in the county of St. Louis. Thomas claimed title under a patent issued by the United States, bearing date the 5th of January, 1843, to Samuel Johnson, for the land, in virtue of an entry made in land office. Thomas obtained title to the land under a decree of the St. Louis Land Court, rendered against Johnson on notice of publication without the appearance of the defendant, vesting Johnson’s title in the plaintiff. The defendant claimed title, and held possession under a patent issued on the same entry to Samuel M. Coleman, assignee of Samuel Johnson, dated 14th March, 1845.

At the trial the defendant offered to prove that Samuel Johnson was a fictitious person, and that Thomas, the plaintiff, knew the fact when he obtained his decree-and prior thereto. This evidence the plaintiff Thomas objected to, and the court ruled it out. The defendant excepted. There was a verdict for plaintiff, and judgment. The defendant made his motion for a new trial, which being overruled, he brings the case here by appeal.

The only question which the appellant makes in this court is, whether the holder of a junior patent will be allowed to defeat an older patent for the same land by showing that the patentee or grantee named is a fictitious person. The plaintiff having showed his patent and his decree under it for the land, the defendant contended that it was competent for him to show that Samuel Johnson, the patentee, was a man of straw — a mere fictitious person — and in consequence no title could pass to such a grantee. This evidence was rejected and as we think improperly.

There must be in existence some person or corporation or body capable of taking at the time the patent issued. Nothing could pass to the patentee by virtue of a patent emanating after his death. (Collins v. Brannin & Tramell, 1 Mo. 384.) In McCracken’s heirs v. Beall Bowman, 3 A. K. Marsh. 1082, the court of appeals of Kentucky, in their opinion, delivered by Judge Owsley, say: “ Indeed we can not imagine how it is possible for any act necessary to the acquisition of right to be done in the name of a dead person, and at the same time have any legal operation. After the decease the dead person has no rights, and no rights can be acquired by others in his name. In McDonald’s heirs v. Smalley et al., 6 Pet. 261, Chief Justice Marshall said: “ David Anderson, in whose name the entry was made under which the plaintiffs claim, was dead at the time. The entry therefore, as was determined in Galt and others v. Galloway, 4 Pet. 332, is in the state of Ohio a nullity. This being the foundation of the plaintiffs’ action, they must fail.” In Galloway v. Finley, 12 Pet. 297, Mr. Justice Catron, in delivering the opinion of the court, said: “ The principal ground relied on for relief being that the patents were void because made after Charles Bradford’s death, we will proceed to examine it. That a patent thus made passes no title is true in the nature of things; there must be a grantee before a grant can take effect. So this court held, in Galt v. Galloway, 4 Pet. 345, and McDonald v. Smalley, 6 Pet. 261.” Now the proof offered here was not that there had been such a man living, but was -dead when the patent issued, but that the entry was originally made by some other person in the name of tins fictitious person — this man of straw — who was not there, nor ever had been a real person, and that this was known to plaintiff-Thomas. If such was the fact, the proof had a direct tendency to defeat the plaintiff’s action. For, if Samuel Johnson, the patentee, never had any existence, then he had no title, and the decree could pass out of him and vest in the plaintiff no title. The proof should have been received. This point reverses the judgment below, and this is the only point we now decide. Let the judgment be reversed and the cause remanded;

Judge Scott concurring; Judge Leonard absent.


author: Ryland, Judge.

text:
    Thomas, Respondent, v. Boerner, Appellant.
    1. A patent to a fictitious person is a nullity.

      Appeal from Si. Louis Land Court.

      Buckner and Morehead, for appellant.

      Coalter, for respondent.
   Ryland, Judge.

This case presents the same question as the case of Thomas v. Wyatt, just decided, and to the opinion in the case of Wyatt we refer. The same character of proof was offered and for the same purpose. The court erred in rejecting the testimony offered by defendant; and for this error alone its judgment is reversed; this court holding that a patent for land to a fictitious person, not in existence; carries no title-vests no interest in any one;

Judge Scott concurring ;

reversed and remanded.


author: Scott, Judge,

text:
    Gilbert, Plaintiff in Error, v. Boyd et al., Defendants in Error.
    1. Where a deed of conveyance is duly acknowledged and recorded, and is shown not to be within the power of the party wishing to use the same, a certified copy thereof is admissible in evidence; no notice to produce the original is required.
    2. The appointment of trustees may be proven by parol evidence, whore it does not appear that the evidence of the appointment is in writing.

      Error to St. Louis Law Commissioner’s Court.

    This was an action against the trustees of the “African Methodist Episcopal Church” to recover the value of the services of plaintiff as sexton of said church. The plaintiff recovered before the justice of the peace. An appeal was taken to the Law Commissioner’s Court. The plaintiff offered in evidence a certified copy of a deed to the defendants as trustees of the African Methodist Episcopal Church, and offered to prove that the original was not in his possession or within his power or control. The counsel for defendants objected to the admission of the'copy on the ground that no notice had been served requiring the production of the original. The objection was sustained. Plaintiff also offered to prove by a witness that defendants were the acting trustees of said church. Defendants objected to the reception of this evidence on the ground that there was better evidence and that the books of the church should be produced. The objection was sustained. The plaintiff submitted to a non-suit.

      Bland, & Coleman, for defendant in error.

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

delivered the opinion of the court.

The 46th section of the act concerning conveyances (E. C. 1845) provides that when any instrument in writing conveying or affecting real estate is acknowledged or proved, certified and recorded, and it shall be shown to the court that such instrument is lost, or not within the power of the party wishing to use the same, the record thereof or the transcript of such record, certified by the recorder under the seal of his office, may be read in evidence without further proof. As the statute prescribes the state of circumstances which authorizes the deed to be read in evidence, we do not conceive that the court had any authority to require any other fact to be proved in order to make it testimony in the cause. The party offering the transcript was entitled to read it upon proof that the original was not within his power, and the court should not have required him to prove a notice to produce the original.

As the record stands we do not see that there was any written evidence of the appointment of the trustees. If there was none, the fact of course might have been proved by parol. We do not know that the rule which permits civil officers and officers of corporations to be proved to be such by reputation and their acts extends to private trustees when there is written evidence of their appointment. It is said an agent may prove his agency when it is by parol. (Greenl. § 416.) In general, the fact of an agency can not be proved by parol unless the non-production of the writing is first accounted for. (Cowen’s Notes, 1208.) The official character of officers, both civil and corporate, may be proved by acts and reputation. (Cowen’s Notes, 554; United States v. Dandridge, 12 Wheat. 60.) The other judges concurring, the judgment will be reversed, and the cause remanded.


text:
    Glasgow et al., Respondents, v. Nicholson, Appellant.
    1. Hive hogsheads of sugar lying on the wharf of St. Louis were purchased by sample; held, that a delivery to the purchaser of the city weigher’s certificate and a bill of the price constituted a sufficient delivery of the sugar.

      Appeal from, St, Louis Law Commissioner’s Court.

    This was an action for the price of a hogshead of sugar alleged to have been sold and delivered to defendant by plaintiffs. The court found the following facts : “ That the plaintiffs were the owners of ten hogsheads of sugar, which were on the last day of November, 1854, lying on the wharf of the city of St. Louis ; that the defendant purchased five of the said hogsheads by sample at their store, and requested them to have the sugar weighed early next morning. The next morning the hogsheads were weighed by a city weigher. A certificate of the weight and a bill of the price were delivered to the clerks of the defendant, at defendant’s store, (the said five hogsheads being still on the wharf,) one of whom stated he would attend to it. On the 2d day of December following, defendant sent his dray for the sugar, but only four hogsheads could be found, which four defendant hauled away and paid for, but refused to pay for the fifth,” &c. The court rendered judgment for plaintiff. -

      Han't & Jecko, for appellant.
    Blackwood, for respondents.
   Scott, Judge,

delivered the opinion of the court.

When goods are so ponderous and bulky that they can not be manually delivered, or when they are not in the personal custody of the seller, the law does not require an actual delivery, but only that they be placed in the power of the pur■chaser, or that his authority as owner be acknowledged by some formal act or declaration of the seller. The law never insists upon an actual delivery when it would be impracticable. The delivery of the key of the warehouse in which the .'goods sold are deposited, or the transferring them on the books of the wharfinger or warehouse keeper to the name of the buyer, with mutual consent, or the delivery of the receipt ticket, sale note, or other ordinary evidence of title to goods, in the situation of goods sold, is a sufficient delivery to them. The marking of a bale of goods in a warehouse with the ■vendee’s name is a sufficient delivery to vest title, when the contract is otherwise complete. So, if the vendor show ponderous articles, such as logs lying in a boom, this is a delivery, though the vendee allow them to remain there; for this is the only practical way of making a delivery of such articles, and the law only requires such a delivery as is consistent with the nature of the thing. Ordinarily, the place of delivery is that where the goods are at the time of sale, unless it is shown that the parties otherwise intended. (Sfory on Cont. 810.)

This is the case of a sale of sugar in hogsheads lying on the wharf. The hogsheads were weighed and marked by the city weigher of St. Louis, and a certificate of the weights and marks, together with a bill for the sugar, was delivered to the defendant. He admits that he purchased the sugar, and received four out of the five hogsheads — the amount purchased — but denies that the fifth hogshead was ever delivered to him. As the sugar was sold on the wharf, that would be the place of delivery, nothing more appearing. We do not see that more could have been done than was done by the plaintiffs to effect a delivery, and that with the consent of the defendant. The facts proved are as significant of a symbolical delivery as those mentioned in the instances above; and it is clearly shown in the evidence that the means employed were those usually practiced in effecting the delivery of goods sold on the wharf in the city of St. Louis. After a delivery was accomplished, the sugar would be at the risk of the buyer; and if through his inattention or neglect it was lost, he can not be relieved from the payment of the price of it. The other judges concurring, the judgment will be affirmed.


text:
    Mitchell, Respondent, v. Parker, Appellant.
    1. Although a New Madrid certificate should he obtained through fraud or mistake, it is not void; it is good as against the United States until it is annulled or set aside.

      Appeal from St. Louis Land Court.

    Morehead, for appellant.
    I. The court erred in finding from the evidence that certificate No. 119 was legally issued and legally entered. On the injured land only one certificate could lawfully issue, and that was No. 118, the first issued. There can be no doubt that all the confirmations were on the same concession, and that both certificates issued on the same injured land. The same petition, same concession, same Spanish survey, same quantity, same description and boundary — Joseph Hunot, sr., on one side — same notice of claim, and same dates, but acted on by the board on the same notice at different times, as the reference to the minutes show. When the first certificate issued, it operated a relinquishment of the injured land to the United States. (11 Mo. 126, 165.) The evidence did not show which of the Barsaloux owned the injured land. Watson’s was the only evidence on that point. He says Grand Barsaloux owned ninety arpens near the village, and one hundred and fifty on the Lake St. Mary, and sold them both to Wash. He does not identify this land or speak of ninety arpens on Lake St. Mary. If it were attempted to infer that the one hundred and fifty arpens he speaks of was this land, it was the same located by certificate No. 118. There is no evidence showing that the title of Eugene, if he had any, passed to Eulalie, whether he died without issue and unmarried. Watson only says he died before Eulalie, nor is it proved whether the mother was living when Eugene died. The will was improperly admitted in evidence. (8 Mo. 427.) The plaintiff must recover on the strength of his title. (9 Mo. 488.)
   Scott, Judge,

delivered the opinion of the court.

This is an action in the nature of an ejectment. The defendant relies on no title in himself, but attempts to defeat the plaintiff’s action by showing that there is no title in him. The plaintiff, in support of his title, produced a record from which these facts are gathered. On the 27th March, 1806, J. B. Barsaloux presented to the first board of the United States commissioners a claim for one hundred and fifty arpens of land. This claim is in these words: “ John Baptiste Barsa-loux claims one hundred and fifty arpens of land, situate in the district of New Madrid, by virtue of a grant from El Baron de Carondelet, dated May 12,1792, to him, under the first section of the act of Congress.” This was accompanied by a concession from the Spanish governor general, a survey, plat and field notes. On the last day named the board confirmed to Barsaloux one hundred and fifty arpens of land, being the quantity contained within the limits described in the said certificate of concession. On the 9th August, 1809, the board confirmed to Barsaloux, or his legal representatives, ninety arpens, and ordered that the same be surveyed. This claim was in these words: “ John Baptiste Barsaloux, claiming one hundred and fifty arpens of land, situated near Lake St. Mary, district of New Madrid, produces to the board a concession from the Baron de Carondelet, governor general, for six arpens front by fifteen in depth.” For the proceedings on the claim as first entered reference is made to commissioners’ minute book No. 1, p. 218 and 214; for-this last claim reference is made to book No. 1, p. 214. It is not accompanied with any documents or papers, as appears from the records before us. On the 31st May, 1811, the board issued a certificate, No. 717, to the effect that Barsaloux, or his legal representatives, is entitled to a patent under the provisions of the fourth section of the act of Congress of March 3d, 1807, for ninety arpens of land. Afterwards, in pursuance to the act of 17th February, 1815, Recorder Bates took proof of the injury done to this tract, designated by certificate 717, and granted to R. Wash New Madrid certificate numbered 119, which certificate was located on the land on dispute.

The defendant, to show a want of title in the plaintiff, gave in evidence the claim of J. B. Barsaloux, first copied in this statement. It was an exact copy of that claim. The concession accompanying this claim, and the survey, plat and field notes, all seem to be copies or counterparts of those found in the plaintiff’s record. The reference to the original books of the commissioners is the same as that made in the plaintiff’s evidence. On the 18th of October, 1811, the board acting on this claim granted to J. B. Barsaloux one hundred and fifty of arpens under the provisions of the second section of the act Congress of 3d March, 1807, and granted therefor patent certificate number 1268. Afterwards, Recorder Bates took proof of the injury done to this tract designated in the patent certificate number 1268, and granted to R. Wash New Madrid certificate number 118. This certificate was located on lands on the north side of the Missouri river.

Barsaloux died having made bis last will and testament, leaving two infant children, one of whom died unmarried. The survivor of them conveyed to It. Wash a tract of ninety arpens confirmed to her father, John Barsaloux; also a tract of one hundred and fifty arpens, confirmed to her father; both situated in New Madrid county, and subject to be relinquished for other lands by reason of having been injured by earthquake. There was evidence that there were two persons of the name of John Barsaloux in New Madrid county; one of them had no land. On this state of facts, the defendant maintains that the two confirmations being for the same parcel of land, there can be but one New Madrid certificate for it under the act of February 17,1815, for the relief of the inhabitants of New Madrid; that the injured land having been relinquished to the United States by obtaining certificate No. 118, there was no authority in the officer to issue, nor any consideration for certificate 119 — certificate No. 118 having been previously issued for the same land; consequently that certificate No. 119 is void and all proceedings under it, and being so they confer no title to B. Wash for the land in dispute.

From the view we take of this matter, it is not necessary for us to affirm or deny the truth of the facts assumed in this' proposition. The inferences drawn from the facts we do not acknowledge to be correct. It may be that the two confirmations were for the same tract of land; that the two New Madrid certificates were for the same field, and that there were fraud and mistake in the proceedings, about which we give no opinion, and do not wish to be understood as insinuating there were any ; yet the defendant is not entitled to withhold from the plaintiff the land in controversy.

It is true, if the proceedings under certificate No. 119 were regarded as nullities, the plaintiff would have no right to disturb the defendant in his possession. But there is a distinction between void and voidable acts. A matter which is voidable is effectual until it is avoided by him to whom it is prejudicial ; so long as he acquiesces in the act, it is not for third persons to complain of its irregularity. But when an act is void it is as though it had not been done, and consequently it can not be made to affect any one. The terms void and voidable are frequently confounded by law writers, they using the word void when speaking of an act which may be avoided by suit or plea. Admitting the certificate No. 119 was issued through mistake, and that it ought not to have been issued, yet, as it did issue, and was located, it conferred title as against the United States; and so long as their act is acquiesced in, it is not for strangers to interpose and say the government has been wronged. Until the government sees fit to vindicate its claim by setting aside the voidable act, it is not for third persons to interfere in its behalf. If one has been defrauded of his property by another, can a third person thereby acquire a right to the property as against the wrongdoer. This principle has been long recognized in this court. In the case of Stewart v. Rector & Rector, 1 Mo. 256, it was held that a New Madrid certificate obtained through fraud and mistake was not void, but only voidable, and that so long as it is not avoided it stands good to all intents and purposes.

We consider that the evidence was ample to show that J. B. Barsaloux, through whose heir and devisee Wash acquired title to the land injured by the earthquakes, was the owner of the lands, and that his daughter Eulalie had a right to convey the whole of it. There is no specific objection to the validity or authenticity of the will of Barsaloux; we can see no objection to it.

Judge Ryland concurring,

the judgment will be affirmed;

Judge Leonard absent.


author: Soott, Judge.

text:
    Lee & Gantt, Respondents, v. Parker, Appellants.
    1. Mitchell v. Parker, ante, p. 81, affirmed.

      Appeal from St. Louis Land Court.

      Morehead, for appellant.
    O. G. Cates, for respondents.
   Soott, Judge.

This case is in all respects like that of D. D. Mitchell v. Vm. Parker, decided at the present term of the court, and a like judgment will be entered. Judgment affirmed ;

Judge Hyland concurring; Judge Leonard absent.


text:
    Porter et al., Respondents, v. Bobb, Appellant.
    1. A merchant furnishing goods to a -wife living apart and separated from her husband must ascertain at his peril whether the circumstances warrant him in giving credit to her; he must take notice that there is a separation.

      Appeal from St. Louis Law Commissioner’s Court.

    This was an action to recover the value of goods alleged to have been sold and delivered to defendant. Upon the trial it appeared that the goods were purchased by and delivered to the wife of defendant; that the wife had left her husband’s dwelling prior to the sale of the goods and during his temporary absence on business; that she never returned. The court gave the following instructions at the instance of the plaintiff: “ 1. The jury are instructed that a wife can act as the agent of her husband. 2. The mere fact of the wife of defendant having left his house one or two days prior to the sale of the bill of goods sued for, although without defendant’s knowledge or consent, he being then absent from the city, and her going to her father’s house, does not constitute a notorious desertion, or of itself relieve the defendant from liability unless knowledge of the facts was brought home to the plaintiffs.” The court gave the following instructions at the instance of the defendant: “3. To entitle the plaintiffs to recover, the jury must believe from the evidence that the plaintiffs sold and delivered the goods sued for to the defendant or his legal agent. 4. If the jury believe from the evidence that the goods sued for were furnished to the wife of the defendant at a time when she lived separate from him; that she had quitted him against his will, and that the plaintiffs or either of them knew of the separation, or that the separation was so notorious that they ought to have known it, they will find for the defendant. 5. If the jury believe from the evidence that the goods sued for were furnished to the wife of the defendant; that at said time she ordered the goods to be sent to her father’s residence, where she was then residing, and' that at said time the said defendant was occupying his own house as a dwelling, this was a circumstance sufficient to notify the plaintiff of the. separation.” Other instructions prayed were refused by the court. The jury found a verdict for plaintiff.

      Cline & Jamison, for appellant.

      P. B. Garesché, for respondents.
   Scott, Judge,

delivered the opinion of the court.

This case turns on the fact whether there was a separation between Bobb and his wife at the time the goods were furnished. The case of Harshaw v. Merryman, 18 Mo. 118, shows that where there is a separation between husband and wife, the tradesman at his peril must ascertain whether circumstances exist which would warrant him in giving credit to her. He is to take notice that there is a separation, and it is no defence to say that he had no knowledge of the fact. Whether there was a separation without the fault of the husband between the husband and wife at the time the goods were furnished is the fact to be submitted to the jury. The other judges concurring, the judgment will be reversed, and the cause remanded.


author: Rvland, Judge,

text:
    City of St. Louis, Respondent, v. Jackson, Appellant.
    1. The City of St. Louis lias power under its charter (see Rey. Ord. 1856, p. 138, 518,) to provide hy ordinance that “no person, not being the lessee of a butcher-’s stall, shall sell, or offer for sale, in market or in any other place, any fresh meat in less quantities than one quarter.”

      Appeal from St. Louis Criminal Cowrt.

    Wingate, for appellant.
    I. Section 9 of article 5 of the ordinance relating to markets is void. 1st, There was no power vested in the city -under its charter to pass such an ordinance. (Amended city charter of March 3, 1851; Taylor v. Griswold, 2 Green, 223 ; Phillips v. Wickam, 1 Page, 598 ; 2 Kent, 295.) Said section was in restraint of trade. (Angelí & Ames on Corp. § 332-8; Dunham v. Trustees of Rochester, 5 Dow. 462; Freeholders v. Barber, 2 Halst. 64.)
    II. The necessity of introducing the charter in evidence is not dispensed with.

      Jecho, (city attorney,) for respondent.)
   Rvland, Judge,

delivered the opinion of the court.

This was a suit for a penalty given by an ordinance of the city for retailing fresh meat in quantity less than a quarter, without being the lessee of a butcher’s stall. There was a trial and judgment against defendant in the recorder’s court, from which he appealed to the Criminal Court. Judgment was again rendered against the defendant, and he brings the case by appeal to this court.

It appears from the bill of exceptions that on the trial the plaintiff read in evidence section 9 of the 5th article of an ordinance of the city of St. Louis relating to markets, as follows : “ No person not being the lessee of a butcher’s stall shall sell or offer for sale, in market, or in any other place, any fresh meat in less quantities than one quarter;” also read section 29 of said act, as follows : “ Whoever shall violate any of the provisions of this article, or shall fail to obey any legal order of the market-master in relation to any matter placed under his official charge, shall forfeit and pay not less than three nor more than one hundred dollars.” The plaintiff also introduced John Newcomb, a witness, who testified that defendant on the 14th day of March, 1856, kept a meat sbop on the corner of Tenth and Wash streets, in said city of St. Lonis; that witness was in defendant’s shop on that day, and other days previous to that day, and saw defendant and his wife sell fresh meat to different persons by a less quantity than one quarter; and that he had seen defendant’s wife and defendant attending in said shop and selling fresh meat to different persons by a less quantity than one quarter, at several times from the 1st to the middle of March. On cross-examination witness stated that he did not see defendant sell any meat on the 14th of March; thought that defendant was not in the shop at the time his wife was selling meat on the said 14th day of March; which was all the evidence introduced on both sides. The jury found the defendant guilty, but were unable to fix the amount of the fine; the court fined him ten dollars, and gave judgment for that sum and costs. The .record shows no exception taken to any evidence given on the trial below, and no instructions were asked or given as appears from the record.

The defendant moved in arrest of judgment, stating that, 1st, there was no sufficient cause of action appearing on the face of the complaint filed by the plaintiff herein against the defendant; 2d, there was no power vested in said City of St. Louis or its officers by virtue of any law or charter erecting said city into a corporation, whereby said city as a corporation was permitted, empowered or authorized to ordain, establish or enforce said section 9 of article 5 of ordinance No. 3502, in relation to markets, at the time of its adoption ; 3d, that said section (and for a violation of which said complaint is made) is too general in its terms, in restraint of trade, oppressive upon the citizen, contrary to the general principles and policy of the laws of the state, of Missouri, and therefore void; and for a new trial, 1st, because the verdict of the jury is contrary to the law and the evidence; 2d, that the verdict of the jury is contrary to the evidence. These motions were both overruled, and the appellant seeks to reverse the judgment below on the ground that the ordinance, the 9th section at least, is void; 1st, because there was no power vested in said city by any law or charter authorizing the city to ordain or establish the same; 2d, that it is in restraint of trade and contrary to the general principles and policy of the laws of Missouri.

In the second section of the third article of the amended charter of the city, the mayor and city council shall have power within the city, by ordinance, to make many regulations ; the 31st subdivision is as follows: “ To regulate the inspection of butter, lard, and other provisions ; to regulate the vending of meat, poultry and vegetables; to restrain and punish the forestalling of poultry, butter, eggs, and fruit, and to suppress hucksters.” By the twelfth section of the same article, “ All ordinances of the city may be proven by the seal of the corporation, and when printed and published by authority of the corporation, the same shall be received in evidence in all courts and places without further proof.” The act amending the charter is declared to be a public act, and may be read in'evidence in all courts of law and equity in-this state without proof. There is nothing in the objection, taken here for the first time, that the ordinance was not properly proved or authenticated before it was read to the jury. There was no objection to its being read saved, as we can find, and we will not listen to such an objection here. If the defendant wished to take advantage of the matter, he should have made the proper motion in proper time below, 'where the party might have it in his power at once to have obviated the objection by showing that such an ordinance was properly passed and was in full force. The amended charter expressly authorizes the city mayor and council to regulate the sale of meat by ordinance. There is nothing then in the objection as regards this point. The city ordinance was properly within the powers granted to the corporation.

And we are unable to see how it operated in restraint of trade. Here the defendant is required to obtain a stall in some market if he wishes to sell fresh meat in less quantity than one quarter. We look upon this regulation as both politic and proper. There is no better way to manage and control the hucksters and vendors of meats, &c., than by fixing a place for the sale of such commodities. There is not so much danger of unwholesome njeats, of impure and unsound meats, being exposed to sale now as there would be if there were no such ordinance. -The reasoning in the case of Dunham v. Trustees of Rochester, 5 Cow. 465, will not embrace the case of the City v. Jackson. This ordinance is not against any known law of our state, nor does it interfere with the right of selling the commodities of our citizens ; it requires that the person retailing fresh meat shall have a stall in some market for that purpose. The city undergoes heavy expense in erecting commodious and convenient market houses; it rents the stalls of those houses to butchers and others retailing fresh meats; the rents are of importance by way of income to the city. Now to permit any one who may think proper to put up a block or shantee on any street or alley, or corner of any street or alley, for the purpose of selling fresh meats in quantity less than a quarter, and thereby withdraw the purchasers from the market houses, is at once giving to such retailers a very great advantage over those who rent the stalls and pay a high price for them.

We consider such an ordinance highly proper; it is calcu lated to keep the market in a healthy condition — not only so, but to preserve the health of the city, but watching carefully the vendors of fresh meats — making such meats to lie open and exposed to the control and supervision of the market-master. Upon the whole record we find no error. Let the judgment therefore be affirmed; the other judges concurring.


text:
    Grimm, Appellant, v. Gamache, Respondent.
    1. Objections to the admission of testimony should be specific, not general.

      Appeal from St. Louis Court of Common Pleas.

      D. C. Woods and Goff, for appellant.

      P. B. GareschS, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This was a suit to recover damages for the mal-performance of a building contract, and for damages sustained to the plaintiff’s property by reason of the falling of the building. There was a trial below, and verdict and judgment for defendant; a motion for a new tidal was made and overruled, and the plaintiff brings the case here by appeal.

The only points raised in this court by the appellant for reversing the judgment depend upon the rulings of the court below in admitting the record of a suit in the Circuit Court of St. Louis county between the same parties on a note given on account of the same contract, the foundation of this present suit; the rejecting parol evidence to contradict the record so given in evidence, and the refusing to give as well as the giving of instructions. There is nothing in the question about the admission of the record, and nothing in refusing to admit parol testimony to contradict it. When the record was offered in evidence the plaintiff objected, but he made no specific objection — pointed out no defect; nothing was brought to the mind of the court in order to pass upon the admissibility or incompetency of the evidence. This general objection has again and again been decided by this court as in fact amounting to no objection. The practice of making wholesale objections to the admission of a document as evidence, and then coming here for the purpose of pointing-out specific causes of objection, specific defects, which, if mentioned below, could in most cases be obviated by the adverse party immediately, has met the decided disapprobation of this court. We will not regard such objections. We will not subject the inferior courts to the task of examining- documents, of poring over long and sometimes nearly illegible instruments of writing and of records in order to ascertain whether or not they can be admitted in evidence. Let the objecting party point out the causes for which he objects, and then the court can at once see, and the adverse party have the opportunity of remedying or of doing away the objections.

As to the instructions given, we are of opinion that some of the instructions are calculated to mislead the jury, and were improper. Before we notice them separately, we must be permitted again to condemn the practice of giving so many and such useless instructions as from time to time appear in the records coming up to this court. Instructions are to assist the jury in forming their verdict according to the legal principles involved in the controversy — to instruct them how to arrive at a proper conclusion from the proof before them, according to the law governing the case. The instructions given by the court, of its own motion, are as follows : “ 6. If the house in question was not built according to the contract between the parties, and the plaintiff knew of the defects and did not notify the defendant thereof, nor cause the same to be repaired, but continued to use and enjoy the same after having accepted it; and if the house afterwards fell down in consequence of said defects or the failure to repair the same, then the plaintiff is not entitled to recover for any damages he sustained from the falling of said house, if the said defects could have been repaired. 7. If the defendant contracted to build for plaintiff a brick house for the purposes alleged in the petition, then the defendant was bound to build for the plaintiff a good and substantial house. 8. If the jury believe from the evidence that the defendant contracted with the plaintiff to build for him a house as stated in the petition, and that said house was not built in a good workmanlike manner, and of good material, and that the plaintiff sustained damages therefrom, then the jury should find for the plaintiff. 9. If the jury believe that there was a special contract between the parties for the building of said house, and that after the same was built the plaintiff accepted the same, then the plaintiff must show to the satisfaction oí the jury that the said house was not built according to contract, and unless the defects were not known to the plaintiff and not visible or open to observation, then the plaintiff must show the difference in the value of the house as it actually was at the time, and what its value would have been if it had been built as contracted for, and that difference will be what the plaintiff is entitled to recover if he paid for said house according to the terms of the contract. 10. If the defendant agreed with plaintiff to build him a house fit and proper, and strong enough to answer the purpose specified in the petition, and the defendant failed to comply with his agreement, then the plaintiff is entitled to recover. 12. If the jury believe from the evidence that the contract was only to build a dwelling or boarding house, and not a dancing hall, and said house was built in a good workmanlike manner, and of good materials, and of sufficient strength for a boarding and dwelling house, then the jury should find for the defendant. 13. If the house in question was thrown down by a tornado, and not in consequence of any defect in workmanship or materials, then the jury should find for the defendant. 14. If the jury believe from the evidence that the defendant did not make the contract set out in the petition, or that if made by him he performed the same as agreed by him in a good workmanlike manner, and of good materials, or that said house did not fall down from any defect in workmanship or materials, then the plaintiff can not recover for any injury done or damages sustained from the falling of said house. 15. If the defendant made the contract set out in the petition, and after the house was built the plaintiff accepted the same as done in accordance with the contract, and paid therefor the contract price, and if said house was defective in workmanship or materials, and the plaintiff knew of said defects, or they were open to observation, then the measure of damages, if plaintiff paid the contract price as agreed, is the difference in value between what the house was really worth as it was built, and what it would have been worth if it had been built as contracted for. 16. If the contract alleged was made by the defendant and the defendant failed to perform the contract on his part, and when the plaintiff accepted the same he did not know of any defects in workmanship or materials, or they were not open to observation; and if, after the plaintiff accepted the same, the said house fell down in consequence of defective workmanship or materials, then the measure of damages will be what the evidence shows the plaintiff actually sustained in consequence of said defects. 17. If the defects in workmanship or materials complained of did cause the fall, of the house and the plaintiff knew of said defects, or they were open to observation when the plaintiff áccepted the house, and he did not repair the same or cause the same to be repaired, but used the house as it was built, then he can not in any event recover more than what it would have cost to repair or remedy said defects.” •

The first instruction here given, being No. 6, has reference, not to the mal-performance of the contract to build, but to any damages sustained by the plaintiff by the falling of the house. The objection to the instruction is in reference to the phrase “ after having accepted.” This phrase would do very well when used in regard to movable property. But surely the idea of a contractor building for a man a house on the owner’s land, and the owner not ordering it to be pulled down or taken away, or his even using it, can not be such an acceptance as will destroy his right to sue for any violation of the contract, if such violation be known or unknown at the time. The instruction had no tendency to assist the jury in forming a proper verdict in the case. Now if the evidence showed that the house was so badly built or built of such frail materials that a prudent man would not risk his property in it, if he could see the danger by merely examining the outside appearance, and the owner did put property — furniture, for instance — in such a house, then the owner must lose by his own carelessness. He can not recover for such loss caused by the falling when he, as a prudent man, should not have run the risk. But this does not interfere with his right to sue for a violation of the contract to build. We consider the instruction confines the point of recovery to the damages sustained alone by the mere falling of the house, and, as we think the plaintiff can not recover for any other injury than such as arises from the breach of the contract to build, and not merely remote consequential damages, we would not reverse for this instruction alone.

The seventh and eighth instructions may be looked upon as producing no injury to the plaintiff. The ninth instruction is improper. Here the phrase, “ plaintiff accepted the same,” again is used. The jury could be easily misled by this instruction, and it was error to give it. The tenth and twelfth instructions did not injure the plaintiff. There is none marked as eleventh. The thirteenth instruction did not particularly draw the jury’s attention to the fact whether it was the improper or defective workmanship, or improper or insufficient materials used in the building, that caused it to ¡give way before the force of the tornado or not. This in.struction puts the falling of the house as caused by the tornado in one point of view, or as caused by defective workmanship or the materials in another point of view. Now if it was the improper and insufficient workmanship, or the defectiveness or insufficiency of the materials used, that rendered the house unable to withstand the tornado, then the tornado did not alone produce the damages, and the defendant should not be permitted to hide himself and escape from the consequences of his own conduct behind the force of the storm. This instruction was erroneous. We see no error in giving the fourteenth instruction. The principles laid down in the fifteenth, sixteenth and seventeenth instructions, in regard to damages, can not have prejudiced the plaintiff’s case; but the phrase, “ accepted the house,” or “ accepted the same,” runs through these instructions, and renders them objectionable. All the way through this long string of instructions the court has been applying the terms of law used in regard to movable property to this contract to erect a house for a man ion his own land. Now we will not pretend to say but that ,the owner may do such acts in regard to the house as will ¡plainly show to the jury that he considered the contract completed and the work performed in accordance therewith, and that he considered the workman discharged from all liability on account of the contract. But to say that a man accepts a liouse built on his own land, is to use 'a phrase well calculated to mislead a jury.

As to the instructions asked by the plaintiff, the first and second were properly refused; of .'the. others, the principles proper to be given were substantially stated to the jury by the court. This court finds nothing improper in refusing to give the instructions asked, when considered with those given by the court.

We can not dismiss this subject without remarking, that this is a most unnecessary suit — a most uncalled for appeal to the courts of the country for redress. There is pending a suit which was before this court and reversed and remanded, in which the matters set forth in this suit are used by defendant in that other suit as a defence, and which this court said he could use to reduce the debt due to the plaintiffs in that action. (Gamache v. Grim, 23 Mo. 38.) Let the judgment below be reversed, and the cause remanded; the other judges concurring.


text:
    Garrison, Respondent, v. Savignac, Appellant.
    1. A person in possession of premises at the commencement of an action of ejectment, to which he is not made a party, can not be dispossessed by virtue of a writ of habere facias possessionem issued under a judgment for plaintiff in said suit.
    2. If in the execution of such writ a person in possession of the premises at the commencement of the suit, and not a party thereto, is dispossessed, and possession given to the plaintiff, and upon the removal of the force the person dispossessed returns to the possession, the plaintiff will not thereby acquire such a possession by the - execution of the writ as will entitle him to sustain an action of unlawful detainer against the person so returning to the possession.

      Appeal from St. Louis Land Court.

    This was an action of unlawful detainer commenced October 10,1854. The plaintiff, Abraham Garrison, in his complaint, charges that on the 19th and 20th days of August, 1854, he was lawfully possessed of the premises in controversy; that, being so possessed, thereof, the defendant, Francis Savignac, on or about the 23d day of August, 1854, wrongfully and without force, by disseisin, obtained possession of the same, &c. The cause was taken to the St. Louis Land .Court by certiorari. The plaintiff introduced in evidence the original record and proceedings in an action of ejectment ,in which Abraham Garrison, plaintiff in this action, was plaintiff, and Alfred Savignac defendant. In said action of ejectment in the Circuit Court of the United States, in which said Ganison sought to recover the premises in controversy in the present suit, a recovery was had by the plaintiff, and a writ of habere facias possessionem was issued, and the marshal of the United States puts the said Garrison in possession, by his agent, of said premises, and removed from the possession of same Francis Savignac, the defendant in the present suit. The said Francis was not a party to the said action of ejectment, The evidence introduced by plaintiff also showed that Francis Savignac lived upon the premises at the time of the execution of said writ; that he refused to deliver up the premises when demanded by the marshal, saying that he was not defendant in the ejectment suit; that he and his furniture were then (August 19th, 1854,) removed by force; that the family of said Francis Savignac the next morning after the forcible removal, and said Savignac a day or two thereafter, resumed the possession of said premises; that a demand in writing had been made for the possession of said premises by plaintiff.
    Defendants introduced evidence showing that Francis Sa-vignao had been in possession, and the only person in possession, for several years before the institution of the ejectment suit against Alfred Savignac; also that the judgment for plaintiff in said suit had since been reversed by the Supreme Court of the United States.
    The court, at the instance of the plaintiff, then gave to the jury the following instructions : “ 1. The writ of possession read in evidence by the plaintiff commands the marshal to put the plaintiff in possession of the land described therein without reference to the persons who may be in possession at the time tbe writ issues; it does not tell tbe marshal to put any particular person out of possession, but to put all persons out except tbe plaintiff, who is to be put into possession. 2. If tbe jury find for tbe plaintiff they must find tbe value of tbe premises monthly, and assess tbe damages sustained by tbe plaintiff by reason of the unlawful entry and detainer.”
    The defendant then asked tbe following instruction, which was given : “1. Tbe court instructs tbe jury that unless they believe from tbe testimony before them in this case that the plaintiff Abraham Garrison bad been, or was personally, or by bis agent duly authorized, in actual possession "of tbe premises in contest prior to tbe 20th day of August, 1854, plaintiff can not recover in this case.”
    Defendant also asked tbe following, which were refused: “ 2. Tbe court instructs tbe jury that if they find from tbe evidence in this case that tbe defendant was in peaceable lawful possession of tbe premises in dispute prior to and up to tbe 19th day of August, 1854, and that on that day tbe defendant was ejected from the premises by tbe United States marshal, on proceedings alleged to be legal proceedings, and tbe possession thereof delivered by said marshal to any other person than tbe plaintiff himself personally, then the plaintiff can not recover in this case, unless it shall be shown by tbe testimony in this case that said possession was delivered to said person with tbe knowledge and consent of said plaintiff, and that said person was specially authorized by the said plaintiff as bis agent to receive said possession. 3. Tbe court instructs tbe jury that if tbe defendant was in possession prior to tbe filing of tbe suit road in this case of Abraham Garrison v. Alfred Savignac, in tbe United States Court, and was not a defendant in said suit, that tbe execution issued from tbe United States Court in that case did not authorize tbe marshal to expel Francis, tbe defendant in this case, from bis possession, and in that case tbe plaintiff bad not a legal right to tbe possession of tbe premises. 4. Tbe court instructed tbe jury that if the possession of the premises in dispute was taken from the defendant on tbe 19th day of August, 1854, by the United States marshal, and delivered to any other person or pei’sons than the plaintiff, and that said persons or either of them were acting as general agents or attorneys in fact for said plaintiff, legally authorized by him to act as such, without special reference to the possession of said premises as passing from said United States marshal to said persons, and without special authority, directions or agency to receive said possession, and that said possession Was taken by said United States marshal in pursuance of an execution issued on a judgment in the Circuit Court of the United States for the district of Missouri, in favor of said plaintiff, against said defendant, and that at said time said cause was depending in the Supreme Court of the United States on a writ of error, and that since said time said judgment has been reversed in said Supreme Court, that then the plaintiff in this case had not a legal right to the possession of the premises in question on or before the 23d day of August, 1854, and can not in this case recover. 5. This section is a statutory provision in derogation of the remedies at common law, and must be strictly construed. If the jury find from the evidence that every requisition of the statute has not been fully complied with strictly by the plaintiff, they must find for the defendant. 6. Before the plaintiff can recover in this action, he must show a legal right to the possession of the reality in question. If the jury find from the evidence that the plaintiff has failed to establish a legal right thereto they must find for the defendant. 7. A ‘legal right’ to the possession of reality is that which is founded on a just and rightful claim of the peaceful occupation and enjoyment thereof by ownership therein, whether the same be absolute or qualified, perpetual or limited. If the jury find from the evidence that the plaintiff has failed to show such just and rightful claim to the jjeacoful enjoyment and occupation of the property in question by an ownership thereof, whether absolute or qualified, in perpetuity, or limited, at the time of the alleged disseisin, they must find for the defendant.”.

      Morehead, for appellant.

      I. The plaintiff had not the legal right to the possession, as Ms own evidence shows. The execution was against Alfred Savignae, who was not and never had been in possession. It may be said that the marshal was compelled to execute fully the process in his hands. It might be a justification for the officer, but can not confer upon the plaintiff the legal right. The writ should only have required the marshal to turn out the defendant in the ejectment suit, and all persons who held under him or came into possession after commencement of the suit. On the 10th of October, 1854, when the demand in writing was made, the plaintiff had not a legal right to the possession. Only a person who has been in possession can maintain a legal right to the possession. (11 Mo. 605.) The plaintiff had never been in possession. Constructive possession is not sufficient. (6 J. J. Marsh. 846.)

      Krum Sf Harding and T. T. Gantt, for respondent.
    I. It does not appear that all the evidence heard on the trial is preserved in the record.
    II. It was incumbent on the plaintiff to show himself legally in possession before the disseisin by the wrongful act of the defendant. It was competent for him to show that he was lawfully put in possession under the writ of habere facias possessionem. The writ and the judgment under which it was issued are legal and competent testimony. To entitle the plaintiff to recover it was necessary that he should show, 1st, that he had been in the lawful possession of the premises in question, and 2d, that the defendant wrongfully and without force by disseisin obtained possession of the premises. The testimony abundantly shows that the plaintiff was in lawful possession of the premises. It is equally clear that the defendant wrongfully by- disseisin got possession. The instructions given by the court put the case both as to the law and the facts fairly before the jury. (8 Mo. 276; 14 Mo. 17, 434.)
   Scott, Judge,

delivered the opinion of the court.

It is evident that as far as the merits of this case are concerned they are all against the plaintiff, as the possession, tbe disturbance of which he complains, was obtained by means of a writ of a habere facias possessionem which issued on a judgment, which since the execution of the writ has been reversed.

The defendant in the original suit, Alfred Savignac, and against whom the writ of habere facias possessionem was issued, testified that he never was in possession of the lot in controversy. The defendant in this proceeding, Francis Savig-nac, was turned out of the possession of the lot by the marshal, though he was no party to the suit, was not named in the writ, and though he had been in the undisturbed possession of it for six years prior to the bringing of the suit.

Had application been made to the court whence the habere facias possessionem issued, we see no reason why the court would have refused to award restitution, as it would not suffer its process to be perverted to the oppression of those who were no parties to it. It is said to he a settled rule of practice that no tenant who was in possession anterior to the commencement of an ejectment, can be dispossessed upon a judgment and writ of possession to which he is no party. (Ex parte Reynolds, 1 Caines, 500; Hickman v. Dale, Yerg. 149; McCord’s heirs v. McClintock’s heirs, 5 Litt. 305.) If the defendant Savignac had refused obedience to the process of the officer, as he had a right to do, it not being against him, the court, under the circumstances, never would have allowed a writ of attachment against him. (Adams on Ejectment, 310.)

As the officer had no authority to dispossess the defendant, and as the defendant refused submission to his authority, but yielded to force, and returned to his possession so soon as the force was away, we can not say that the plaintiff by such means acquired such a possession as would entitle him to the remedy he has adopted. It is clear that if the officer had applied to the court for aid in dispossessing the defendant it would have been refused him, and there is no reason why the plaintiff, by taking the law in his own hand, should be in a better situation than if he had appealed to the law.

We are of opinion that a sanction given to this proceeding would be tlie means of creating a precedent that might be productive of much injustice and oppression. Just think of it! A man who has been in possession of his premises for sis years; another, wishing to obtain possession of them, will not sue the actual occupant, but brings a suit against a stranger who never was in possession of the premises — who neither knows nor cares any thing about them. Against such a defendant a judgment is a thing of course. A writ is afterwards sued out, and the real tenant, who is no party to the proceeding, and who may never have heard of it, is turned out of house and home without a moment’s warning. The mere possession of land is frequently a matter of much importance where there is to be litigation respecting its title, and by sanctioning this proceeding an opening will be made whereby one may obtain possession of land, his title to which he was unwilling to expose in a court of justice. The case of Higginbotham v. Higginbotham & Clark, 20 B. Mon. 309, is one in which the same defence to a writ of forcible entry and de-tainer was set up that has been made in this suit. The defendants did not succeed; but that was not on the ground that their defence was not properly conceived, but that the facts in evidence did not make it out; had the defence proved here been made out, the case is an authority for saying that it would have been a valid one.

Judge Ryland concurring,

the judgment will be reversed, and a judgment for the defendant;

Judge Leonard absent.


author: RylaND, . Judge,

text:
    Wainwright, Plaintiff in Error, v. Rowland, et al., Defendants in Error.
    1. A. instituted a suit for specific performance of an agreement to convey an undivided interest in certain premises, claiming also compensation for improvements made by him, -with the consent of the vendor, upon a portion of said premises; the court rendered a decree vesting in A. an undivided interest of one-half, but allowing no compensation for improvements; held, that A. would not be entitled, in a suit for partition, to hare allotted to himself that portion of said premises upon which said improvements had been made or to have compensation made therefor.
    2. Lands may be subdivided for purposes of sale, in an action for partition, as well as for partition in kind.

      Error to St. Louis Circuit Court.

    This was a suit for partition against the heirs of Ellis Wainwright,. Plaintiff, to show title in himself, introduced a decree in a suit in chancery, commenced in the year 1849, in which the plaintiff in this suit was complainant, and the heirs of said Ellis Wainwright defendants. By this decree an undivided interest of one-half in the premises in controversy in the present suit was vested in the complainant. In the bill in chancery, which was for the specific performance of an agreement to convey, the complainant set forth that in the year 1848, by previous understanding and arrangement with the said Ellis Wainwright, he (complainant) had built, at his own expense and for his own use, a dwelling-house upon a portion of the premises embraced in the bill. The decree made no allowance to complainant for such improvements. Plaintiff offered to prove in this action that in the year 1848 he was the equitable owner of an undivided half of the premises described in the petition; that he and Ellis Wainwright (who held at the time the legal title to the entirety of said premises) were in possession of the same as owners in common; that in said year 1848, plaintiff, by consent of said Ellis, built a dwelling-house and appurtenances upon said premises for his own use, and paid for the same with his own money, and occupied and lived in said dwelling-house until after the decease of said Ellis; that said Ellis and plaintiff always considered said dwelling-house as the property of plaintiff, as equitably belonging to him; that said dwelling-house and appurtenances are permanent improvements, worth $850. The defendants objected to the introduction on the ground that the plaintiff was estopped by the decree. The objection was sustained. The plaintiff in his petition prayed the court to allot to him that portion of the premises upon which said improvements had been made, or to compensate him for the improvements.
    The commissioners in partition reported that the land couid not be divided, and recommended that the same be sold in lots in accordance with a plat of the subdivisions made by themselves. The plaintiff moved to set aside the report and order of sale, 1st, because the commissioners had not set off to the plaintiff the part upon which he had erected his improvements ; 2d, because the commissioners had no authority to subdivide the land with a view to a sale ; 3d, because they had no authority to incur the expense of surveying.
    Whittelsey, for appellant.
    I. The plaintiff was entitled in the partition to have the part of the land upon which he had erected his improvements set off to him, or, if that could not be done, to receive compensation from the rents, or the proceeds of the sale. For this purpose he was entitled to have his rights determined by the decree. (Spitts v. Wells, 18 Mo. 468; 2 White & Tud. L. C. 503 ; Swan v. Swan, 8 Price, 518; Brookfield v. Williams, 1 Green Ch. 341; Conklin v. Conklin, 3 Sand. Ch. 64; St. Felix v. Rankin, 3 Edw. Ch. 323 ; Town v. Weedham, 3 Paige, 546, 553 ; Teal v. Woodson, 3 Paige, 470, 474.)
    II. The decree vesting the title was no estoppel against the claim for improvements. The house had been built by plaintiff for his residence, with the consent of his co-tenant, and the cost of the improvements did not and could not go into the settlement of the partnership accounts of E. & S. Wain-wriglit. The matter was not adjudicated as a matter of fact, and was therefore not a bar. (2 Smith’s L. C. 443; Outram v. Morehead, 3 East, 346; 1 Greenl. E. 528; Arnold v. Arnold, 17 Pick. 7; Cow. & Hill’s notes, 1 Phil. Ev. 321; Hopkins v. Lea, 5 Wheat. 109; Jackson v. Hunt, 10 Wend. 80.) Under the present code the pleadings are special, and the pleadings and judgment or decree offered in evidence show that the rest of these improvements did not go into the account or pleadings or decree. The judgment of the court in the present case leaves the plaintiff liable to account for one-lialf of the rents of the property improved, whereas in equity he should be charged only with the one-half of the ground rents.
    III. The commissioners had no authority to subdivide the lot except for partition in kind. (Act 1845, p. 767, secs. 20, 21, 22, 28.) The plat returned shows that the commissioners might have set off to the plaintiff part of his land, and thus have avoided part of the costs of sale.

      Gibson and Krum Sf Harding, for defendants.
   RylaND, . Judge,

delivered the opinion of the court.

This was a suit for partition of a certain lot of ground lying in block No. 39 in the city of St. Louis, being the whole of the north-east quarter of said block 39, except twenty-three feet front on Main street, by sixty-two feet two inches on Almond street in depth. The plaintiff says he is owner in fee of one equal undivided half of said lot of ground. He alleges that he had erected a house upon the lot of ground held in common with consent of his co-tenant, and by his own means. He asks that this part of the lot on which he had built his house may be assigned to him without charging him with the value of the improvement, or that he may be allowed for the improvement so made by him. Upon the trial, it appeared that the plaintiff’s title was derived under a decree of the Circuit Court of St. Louis county, sitting as a court of chancery, declaring him entitled to one undivided half of the lot upon a bill for a specific performance, in which bill the complainant (the present plaintiff) set forth the alleged fact as to his building of this very house, with his own means, and by his then co-tenant’s consent. This claim was disregarded by the court in this present case, and the commissioners reported against a division in specie, and for a sale, and subdivided the lots by streets and alleys for the pui’pose of the sale. The plaintiff objected to this course, and brings the case here by writ of error.

The plaintiff showed no right to demand any thing for the building by him erected on the lot in question; no right to have that portion on which the building stood allotted to him by the commissioners. His title is derived under a decree in chancery. This building and the possession of it by plaintiff, and the averments about its being made and erected at the costs of the plaintiff individually, were all matters alleged in the bill in chancery; yet the decree only declares him entitled to an equal undivided half of the lot of ground; does not give him any claim to demand the particular price or part covered by his building, or to demand pay or remuneration for his building. He proved title to an undivided half of the lot — title, too, declared by a decree in chancery after the building had been erected. There is not the slightest ground for his demand of any particular portion of the lot to be partitioned off to him, or to be allowed for any building put on it by him.

The commissioners reported that a sale was necessary, the lot being incapable of partition in specie without injury to the owners; and in their judgment the lot of ground would bring more by being laid off by streets and alleys into lots. No doubt these commissioners were better qualified to decide upon this measure than the courts, and, having made their report, we shall not reverse the judgment below approving and confirming it.

In looking over the whole record of the proceedings below, we find nothing done of which the plaintiff has any right to complain. Let the judgment therefore be affirmed; the other judges concurring.


author: RylaND, Judge,

text:
    Holland, Respondent, v. Steamboat R. H. Winslow, Appellant.
    1. Strict conformity with technical rules of pleading should not be enforced in proceedings before justices of the peace.

      2. A complaint filed before a justice of the peace against a steamboat is not rendered fatally defective by reason of the fact that the demand was stated therein to have “accrued against the said steamboat on account of the mate, the captain, or the clerk, agents thereof, for work and labor done on board of said steamboat as a laborer,” &c.

      Appeal from St. Louis Law Commissioner's Court.

      N. McDonald and Hudson & Thomas, for appellant.

      G. Lewis, for respondent.
   RylaND, Judge,

delivered tbe opinion of the court.

This case presents the single point in regard to the complaint and affidavit filed by the plaintiff. The complaint is as follows : “ Timothy Holland complains that he has a demand against the steamboat R. H. Winslow, a boat used in navigating the waters of this state, amounting to two dollars and sixty cents, which demand accrued against the said steamboat on account of the mate, the captain, or the clerk, agents thereof, for work and labor done on board of said steamboat R. H. Winslow as laborer, within the thirty days next preceding the commencement of this suit, and is in all its particulars as follows, to-wit :

“ 1865. April 23. Steamboat R. H. Winslow, to Timothy Holland, Dr. To 13 hours’ labor and work done on board of said steamboat R. H. Winslow, at 20 cents per hour — $2 60. And the said Timothy Holland further states that he has now no other demand against the said steamboat R. H. Winslow, which is a lien thereon.”

“ Timothy Holland being sworn on his oath, says that the facts set forth in the above complaint are true. [Signed] Timothy Holland.”

“ Sworn to and subscribed before me, this 24th day of April, 1855. [Signed] Jeremiah Langton, Justice.”

The plaintiff filed his bond with security, and a warrant was issued against the boat, executed as the law directs; at the return day, the plaintiff appeared ready for trial; the defendant made default and answered not. The plaintiff submitted his case to the justice, who heard the evidence, and rendered judgment in favor of the plaintiff against the defendant for the sum of $2 60 and costs. The defendant after-wards appealed to the Law Commissioner’s Court. When the transcript was filed in the Law Commissioner’s Court, the parties appeared, and defendant moved to quash the complaint filed, and to dismiss the cause, because, 1st, said complaint does not set out or show with sufficient certainty the person on whose account said alleged demand accrued ; 2d, because said complaint is void for uncertainty; 3d, because said complaint is not verified by affidavit as required by law; 4th, because the supposed affidavit is informal and insufficient. The Law Commissioner overruled this motion, and upon a trial the plaintiff again recovered judgment for $2 60. The defendant moved for a new trial, which being denied, the cause is brought here by appeal.

The bill of exceptions shows that the plaintiff labored for defendant for 13 hours at 20 cents per hour — making f>2 60; that such was the agreement; that the mate of the boat employed some twenty-two or twenty-three hands, and that plaintiff was one; and the price for the work was twenty cents per hour. The evidence leaves no doubt as to the price agreed to be paid and the time engaged in the work; and it was the duty of the employers to have paid the wages according to the contract, and not suffer themselves or their boat to be sued for the wages. The clerk offered to pay the laborers $1 50 per day; they refused to accept that sum, and demanded the amount due by their contract.

Now what is the defence made by the boat to this action ? There was none made before the justice of the peace ; judgment was suffered to be entered there by default against the boat; afterwards the case was carried to the Law Commissioner’s Court, where a motion was made to quash the complaint ; there was no defence pretended to be set up against the merits of the demand; but because the ignorant laborer did not specially name the one officer of the boat who made the contract with him to do the work, the defendant moved after judgment bj default to quash the complaint. Now what is the defect ? The plaintiff states the amount of his claim ; he says it accrued against the boat on account of the mate, the captain or the clerk, agents thereof, for work done on board the boat as a laborer. Now because the plaintiff does not state under his oath which particular one of these agents, the mate, or the captain, or the clerk, but names them all as agents, and avers that one of them employed him, his suit is to be dismissed. Wc will not, after having so often refused to apply the strict technical rules of pleading to proceedings before justices of the peace, lend a willing ear to this objection. The laborer knew that he was employed by an officer of the boat — an agent of the boat — but whether he was the mate or captain or clerk, he did not feel able to swear. The person employing him was in one or the other of these capacities, and here is a positive statement that he was employed by an agent of the boat. This is certain enough. It would be contrary to the general decisions of this court to regard such omissions of precise, utmost care and certainty as fatal. The complaint then we think certain enough, and the affidavit is good enough, and the proof is amply sufficient to sanction the plaintiff’s cause of action.

Let the judgment therefore be affirmed;

Judge Scott concurring ; Judge Leonard absent.