author:
RICHARDSON, Judge,
      Scott, Judge,

text:
    Gregg, Appellant, v. Robbins, Respondent.
    1. The master of a steamboat has no authority, as master, to bind the boat or its owners by a promissory note.
    2. The cause of action set forth in a petition must be supported by the evidence, otherwise there will be a fatal variance.

      Appeal from St. Louis Court of Common Pleas.

    Plaintiff states in his petition in substance that the defendant owes him two hundred and eighty dollars with interest from October 8, 1856, for services rendered the defendant by the plaintiff as pilot on defendant’s boat; that on the 3d day of September, 1856, “James F. Smith, the master of defendant’s boat, being duly authorized in that behalf, accounted with the plaintiff, and the sum then found to be due to the plaintiff for his services rendered on the defendant’s boat was two hundred and eighty dollars, for which sum the said Smith, on behalf of the owners of the steamboat Editor, (which boat was then owned by defendant,) executed and delivered to the plaintiff a note for said sum, payable in thirty days after date, which sum with interest is still due the plaintiff, together with interest from October 3, 1856; and for which he asks judgment. The plaintiff annexes the said note to this petition.”
    Testimony was introduced at the trial showing that James E. Smith, the master of the steamboat Editor, of which the defendant Robbins was owner, hired the plaintiff Gregg to serve as pilot for the season of five months, at three hundred dollars per month; that plaintiff continued on board said boat rendering service as pilot from the time of hiring in April, 1856, until about the 1st of July, 1856, at which time the boat lay up. By the terms of the agreement, the plaintiff was to find employment elsewhere in case the boat should stop running, and his earnings on other boats were to be credited on his contract. When the Editor lay up, the plaintiff was paid his wages up to that time. After the expiration of the time of hiring — five months — the plaintiff and the said Smith, as master of the boat, made a settlement and found the balance due plaintiff under the above mentioned contract to be two hundred and eighty dollars, after deducting the amount plaintiff had earned on other boats. For this balance the said captain gave to plaintiff the following note : “ Thirty days after date, I promise to pay Benj. Gregg or order, two hundred and eighty dollars. Balance due for for services rend. St. Louis, September 3,1856. [Signed] Steamer Editor and owners, per J. F. Smith, master.” The master further testified that this note was executed by him without any authority from Robbins, and that it was given for the unexpired term of the contract and not for services actually rendered. There was also evidence tending to show that Robbins was present when Smith made the contract with the plaintiff, and participated in making it.
    The court, at the request of defendant, instructed the jury as follows : “ The jury is instructed that the plaintiff has offered no proof tending to show that the note sued on was executed by the plaintiff or any one authorized by him to execute the same, and the said note is not in evidence before them, and they should therefore find for defendant.”
    The court refused the following instruction asked by plaintiff : “ 1. If the jury believe from the evidence that Smith, the master of the boat of which defendant was owner, in presence of defendant and with his consent, employed plaintiff as pilot on said boat for five months, they will find for plaintiff the balance that may be due under said contract. 2. If the jury believe from the evidence that the plaintiff was employed by Smith, the master of the steamboat Editor^ with the consent and in the 'presence of Solomon H. Robbins, the defendant, and owner of said boat, and that the note mentioned was given by said Smith as master on account of and under said contract for a balance due under the same, they will find for plaintiff.”
    The plaintiff took a nonsuit, with leave, &c.

      Hudson 8f Thomas and Hayden, for appellant.
    I. This action was not brought on the note. Even if it were, the proof would sustain the action. (Sanders v. Anderson, 21 Mo. 402.) The instruction given was clearly wrong. It excluded material testimony from the jury. There was evidence tending to show that the master had authority to execute the note or due bill. The master, as such, has authority to bind the owners by his statement or note. (21 Mo. 402 ; 6 Mo. 552.) Robbins was present and took part in making the contract. It was the owner’s contract. Some services were rendered, and plaintiff was ready to render the rest. In the' view of the parties, it was the same as if the services had been rendered. It was not the plaintiff’s but defendant’s fault that the complete service was not done. Defendant’s agent, the master, chose to consider it as services actually rendered, and so expressly stated in the due bill. In legal intendment the services were rendered. There is no variance between the allegata and probata. (21 Mo. 402.) This action is brought upon the account stated by the master under the contract made by the owner, not on the note as a note. (See Story on Agency, § 116, 121, 294; 300; Abbott on Shipping, 734, 794; Curtis on Merch. Seamen, 14,18, 328 ; 4 Pick. 298; 11 Johns. 72; Gilp. 592 ; 3 Sumn. 286.)

      Grover and Lindenbower, for respondent.
    I. The action was really founded upon the note. It was properly excluded from the jury. The master had no authority to make the note. There was no proof tending to estab lish any cause of action set out in the petition. (See 10 Mete. 375 ; 3 Sto. C. C. 675 ; 16 Conn. 489 ; 2 Engl. L. & Eq. 337; 3 Johns. 518; 25 Mo. 99.)
   RICHARDSON, Judge,

delivered the opinion of the court.

It is not material to decide whether the action is upon a promissory note or on an account for services rendered ; for if the petition is on the note, then there is no proof that the master of the boat had authority to bind the owner in that manner, and authority for that purpose would not be implied from the relation that subsisted between the master and the owner. If the action is on account of services actually rendered, the plaintiff was not entitled to recover on his petition, as the proof showed he had been fully paid for all the services he performed. The evidence tended to show a special contract, which would have entitled the plaintiff to a verdict if he had declared on it; but the variance between the proof and petition was so great that the plaintiff had no right to go to the jury without an amendment, which he did not ask.

Judgment will be affirmed.

Scott, Judge,

dissenting. As the action of the court was calculated to take the party by surprise, there should have been allowed to the plaintiff the privilege of amending his petition. The judgment, in my opinion, should be reversed.


source: Caselaw Access Project

author: Richardson, Judge,

license: Public Domain

text:
    Lancaster, Plaintiff in Error, v. Woodboat Hardin, Defendant in Error.
    1. The master or clerk of a boat can not enforce a claim for -wages due for services rendered on board thereof by a proceeding in rem under the boat and vessel act. (It. C. 1855, p. 303.)

      % This rule applies to the " foreman” of a woodboat acting in the capacity oi master.

      Appeal from, Si. Louis Circuit Court.

      D. G. Woods, for plaintiff in error.
    I. Woodboats are included in the boat and vessel act. The foreman or mate was not master. The boat was not in the habit of carrying passengers and freight. (See 10 Mo. 531.) A proceeding in rem would lie against the boat to enforce the payment of the wages of such foreman. (2 P. Wms. 367; 11 Pet. 175 ; 8 S. & R. 118; Abbott on Ship. 196, 822.)

      Peacock, for defendant in error.
    I. The demurrer was properly sustained. Plaintiff was the actual commander or master of the boat. Calling him a foreman is an attempt to evade the statute.
   Richardson, Judge,

delivered the opinion of the court.

The plaintiff states, in his amended petition, that the defendant was used exclusively in the transportation of wood from places on the Illinois river to the port of St. Louis, where the owners were engaged in the wood business, and that they employed him “ as foreman to- superintend the hands on board, and to exercise a general control of the boat,” for which they agreed to pay him fifty dollars per month ; that he worked ninety days in that capacity and received forty-two dollars; and asked judgment for the balance due to him. A demurrer to the petition was filed and sustained on the ground that the plaintiff’s demand was not a lien on the boat.

The remedy in the state courts against boats or vessels by name is purely statutory, and a demand against a boat can not be enforced by á proceeding in rem, iftiless it is within the provisions of the statute. A lien is given for “ all wages due to hands or persons employed on board such boat or vessel for work done or services rendered on board the same, except for wages which may be due to the master or clerk thereof.” But the petition shows that the plaintiff as “ foreman,” performed the duties of master and really was the master, and, as such, whether called “ foreman,” captain or by any other name, was not entitled to a lien. The master of a vessel has no remedy in admiralty for his wages in rem, for the reason, perhaps, that he has generally the means of paying himself in his own hands; and, though it might appear in a given case that the reason of the rule had failed, the rule itself would not be relaxed. It may be that the plaintiff will lose his debt, unless he can collect it in the way he proposes, but he is in no worse condition than any other creditor who looks to the individual responsibility of his debtor. Cases may arise, not embraced by the statute, whose equity is superior to those which are expressly provided for, but, because the legislature has omitted them, the courts have no authority to enlarge the provision of the statute. The other judges concurring, the judgment will be affirmed.


author: Scott, Judge,

text:
    Miller et al., Respondents, v. Bascom, Appellant.
    1. Where there is a reservation or limitation of personal property by way of condition, reservation or remainder, or otherwise, the same not being declared by will or deed duly proved or acknowledged and recorded, such reservation will not, by the operation of the fifth section of the act concerning fraudulent conveyances (R. C. 1856, p. 803), be rendered void as to the creditors and purchasers of the person in possession, unless such possession shall have continued for the space of five years.
    2. Where personal property is sold and delivered to a person with the understanding that it is to remain the property of the vendor until the purchase money is paid, this “ reservation or limitation” in favor of the vendor is not invalidated by the operation of the fifth section of the act concerning fraudulent conveyance, by reason of a failure to declare the same by will or deed duly proved or acknowledged and recorded; said section has no such operation unless possession has continued for five years.
    3. Layson v. Rogers, 24 Mo. 192, explained and modified.
    4. The mere fact, that the grantor in a deed of trust which is recorded remains in possession of the trust property, is no evidence of fraud; the record is in such case equivalent to a transmutation of possession.

      Appeal from St. Louis Court of Common Pleas.

    This was an action for the possession of a mirror. Evi dence was introduced tending to show that the mirror was sold by plaintiffs to one Hyde, under the understanding and upon the condition that the mirror was to become the property of Hyde if he should pay for it; until he should so pay, the mirror was to remain the property of the plaintiffs. He did not pay for it, but executed a deed of trust, embracing said mirror with other property, to secure indebtedness to third persons. Under this deed of trust a sale was made, and Bascom, the defendant, became the purchaser of the mirror. He purchased with notice of the rights of the plaintiffs. The cause was tried by the court without a jury. The defendant asked the court to instruct as follows: “ 1. If the court, sitting as a jury, shall believe from the evidence that the sale of the mirrors in question made by plaintiff to one Hyde was made with a reservation or limitation by way of condition, reservation or remainder, and that the possession of the property remained with the said Hyde up to the time of the sale by the trustee, Shands, from the time the same was delivered by plaintiffs to said Hyde, then the condition or limitation, if any, in the said sale by plaintiffs to said Hyde, as to all creditors and purchasers of the said Hyde, was void, and the plaintiffs can not recover in this action unless such reservation of said property was declared by will or deed in writing proved or acknowledged and recorded according to law. 2. That if the said Bascom was a purchaser at trustee’s sale under a deed of trust executed by Hyde, who was in the possession of the said mirrors at the time said deed was executed, then said Bascom will hold the said property against the plaintiffs, even although he had verbal notice of the claim of said plaintiffs.” The court refused so to instruct, and found for the plaintiffs.

      Morehead and Carroll, for appellant.
    I. The court erred in refusing the instructions asked. The reservation or limitation was void. (See R. C. 1855, p. 808, § 5: Layson v. Rogers, 24 Mo. 192; Bryson v. Penix, 18 Mo. 18 ; 12 Mo. 379.)

      H. N. Hart, for respondents.
   Scott, Judge,

delivered the opinion of the court.

Without determining the question whether the contract proved by the plaintiffs, that the mirrors were to be the property of the plaintiffs until they were paid for, created a reservation or limitation of any use or property by the way of condition, reversion or remainder, within the meaning of the fifth section of the act concerning fraudulent conveyances, we are of the opinion that the section, to which reference has been made, does not apply to the case under consideration, as the possession of the property had not remained five years in the possession of Hyde at the time of sale.

There is no doubt but that, in case of a loan, the property must remain in the possession of the loanee five years before he can acquire a title, as against the owner, subject to the claims of his creditors and purchasers. This is so clear by the words of the section that no question can arise as to it. Now, where there is a claim of property by way of condition, reversion or remainder, is the same length of possession necessary to vest in the person in possession a good title in favor of his creditors and purchasers ?

The original law on this subject was taken from the code of Yirginia, where it had long existed, and was at an early day introduced amongst us, as we find it in the territorial laws (1 Terr. Laws, 440) ; and, as we find it there, so it continued until the revision in 1835, when the words “ as aforesaid” were omitted. The statutes of Virginia and Kentucky both contain these words, and they are to be found in the law on the subject in our revision of 1825. The law as originally introduced among us was, “ where any goods or chattels shall be pretended to have been loaned to any person, with whom, or those claiming under him, possession shall have remained for the space of five years, without demand made and pursued by due process of law on the part of the pretended lender; or where any reservation or limitation shall be pretended to have been made of any use or property by the way of condition, reversion or remainder or otherwise in goods and chattels, the possession whereof shall have remained in another as aforesaid, the same shall be taken as to the creditors and purchasers of the persons aforesaid so remaining in possession to be fraudulent within this act, unless such loan or reservation of property be declared by, will or deed in writing duly recorded,” Ac.

It has been seen that, in the revision of 1835, the words “ as aforesaid” were omitted, and the omission still remains, and we are called upon to determine whether the omission was intentional and suffered with an intent to change the law so as to make any length of possession, however short, in the person in possession, create a title in favor of his creditors and purchasers, instead of a possession of five years as in the case of a loan. We can see no reason for making any discrimination between a loan and a condition or reservation. The mischief of continuing in possession under one pretext is, as great as the mischief under the other. If a bare possession under a condition or reservation, without regard to its duration, will work a change of property in favor of the possessor, then in many instances the property of the real owner will be taken to satisfy debts which could not have been contracted on the faith of property in the possession of the debtor, for the debt will have been contracted before the possession of the property came to the debtor. This would be directly against the object and purposes of the act. In the case of Layson v. Rogers, 24 Mo. 192, the words “ as aforesaid” in the act were evidently overlooked, and it is clear that by those words a reservation or condition is put upon the same footing as a loan, and so it has been held in Virginia whence we have this statute. (Loudon v. Turner, 11 Leigh, 403.)

Whether wisely or unwisely, it is well known that the revision of 1835 was made to undergo a purgation of all words deemed unnecessary and of all useless verbiage, and it is more than probable that, under such a process, words are inadvertently omitted which were necessary to express fully the sense of the general assembly.

As the case is in our opinion not within the fifth section of the act concerning fraudulent conveyances, the court committed no error in refusing the instruction asked on the subject of a reservation or limitation of property in the plaintiffs.

As the deed of trust was recorded,' the bare circumstance that the grantor in the deed remained in possession of the trust property was no evidence of fraud, the record in such cases under our statute being equivalent to a transmutation of possession.

Taking together all that the witness said in relation to the sale of the mirror, it amounted to nothing more than that there should be a sale on the payment of the purchase money. His calling the transaction a sale is to be considered with what was said afterwards. Whether the witness should have been believed is a question with which we have nothing to do.

The other judges concur.

Affirmed.


text:
    Lynch et al., Appellants, v. Morrow’s Administrator, Respondent.
    1. A defendant should not he permitted to introduce evidence to support a defence not set up in his answer.

      Appeal from St. Louis Land Gowrt.

      Cline 8f Jamison, for appellants.
    Barret, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

The plaintiffs brought their action against the defendant for use and occupation of a tenement belonging to them and rented to the defendant, for which they claimed three hundred dollars. The defendant, in his answer, denied that he was indebted to the plaintiffs the amount they claimed for rent or on any other account, but admitted that he owed them fifty dollars, which he offered, and was still ready and willing to pay, but they refused to accept it. The defendant on the trial was allowed to read in evidence, against the plaintiffs’ objection, the following instrument, after first proving its execution: “$100. St. Louis, January 21st, 1856. Borrowed and received from Capí. D. I. Morrow one hundred dollars, payable on demand. For Lynch, Arnot & Co., by Turnbull.”

This paper was inadmissible in any light in which it may be regarded, whether as a promissory note due by the plaintiff to the defendant, or as a receipt for so much money paid by the defendant to the plaintiffs on their demand for rent. The law requires that an answer shall contain, 1st, a special denial of each material allegation in the petition controverted by the defendant, and 2d, a statement of any new matter constituting a defence or counter claim. And, therefore, if the paper was intended to be used as a set-off, it should have been set up in the answer as a counter claim. Or if it was offered to prove a payment of any part of the sum sued for, it ought to have been excluded as there was no such defence as payment made in the answer. (Winston v. Taylor, 28 Mo. 82.)

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


author: Napton, Judge,

text:
    Winkelmaier, Respondent, v. Weaver, Interpleader, Appellant.
    1. Should the objection be taken, at the trial of an issue raised by an inter-plea in an attachment, that the interpleader only claims the attached property as cestui que trust, he should be permitted to substitute his trustee as plaintiff in the interplea.

      Appeal from St. Louis Court of Common Pleas.

      Garesché and Bakewell, for appellant.
    I. The court should have allowed the amendment sought. The interplea was founded upon the claim made by the in-terpleader before the sheriff under the sheriff and marshal’s act. (Sess. Acts, 1855, p. 464.) Weaver had an “ interest” in the property attached. He was entitled to make claim to the property. The court erred in giving the instruction. (See 3 How. Prac. R. 322; Voorhies’ Code, 193; 2 P. Wms, 758 ; 27 Mo. 229.)

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

delivered the opinion of the court.

This was a suit by attachment against Bonnet, and Weaver, interpleaded, claiming an interest in the property attached as assignee of one Umsted, who was the cestui que trust in a deed from Bonnet to Seay. Upon the trial, the case was disposéd of by an instruction, that the claimant was not entitled to recover upon his interplea; for what reason is not stated, but it is presumed on the ground that the legal title was in Seay and the claim should have been in his name. An offer was then made to substitute Seay as the claimant in place of Weaver, but this was not permitted.

We do not see any good reason why this case was not tried on its merits. The claim under the deed of trust was the one asserted, and it was of no consequence to the plaintiff in the attachment suit, in whose name it was preferred. We do not mean to say that in an ordinary suit the court ought to permit one plaintiff to be substituted for another after the evidence has shown that the one suing was not entitled to recover; but this proceeding was under the local act of 1853 concerning the duties of sheriff and marshal in St. Louis county, and authorizes any one having an interest in the property to set up his claim. Weaver had an equitable interest if the deed was valid, and he was the only one who did have any real interest, as there were no other beneficiaries in the deed. But conceding that the claim should have been in the name of the trustee, as the proper mode of proceeding under the act, we think the court, under the circumstances, should have allowed the amendment. It was merely formal and could not affect the merits of the case in any way.

Judgment reversed and cause ■ remanded.

The other judges concur.


text:
    Hamilton, Respondent, v. Fulton et al., Appellants.
    1. Judgment affirmed.

      Appeal from St. Louis Court of Common Pleas.

      Krum Sf Harding, for appellants.

      Hitchcock, for respondent.
   Scott, Judge,

delivered the opinion of the court.

We see nothing in this record which will warrant the reversal of this judgment. There is no exception taken to the regularity of the judgment against the defendant Fulton. Kimbal being a part owner and present when the injury was done, it was properly left to the jury whether he was a contributor to the wrong done to the barge of the plaintiff. His presence when the first act was done which endangered the barge was a circumstance from which the jury might infer his assent to what was done afterwards, as all the subsequent acts were prompted by the motive which induced the first. At the instance of Kimbal the jury was instructed that there would be no recovery against him for any wrongful act of the defendant Fulton without his knowledge and consent. Seeing no error in the instructions which affected the defendant; and the jury having found that he participated in the wrong done to the plaintiff, the judgment will be affirmed.

The other judges concur.


author: Naptok, Judge, Judge Scott,

text:
    Hohenthal, Appellant, v. Watson, Respondent.
    1. A party can not assign for error that which is beneficial to himself and prejudicial to the opposite party alone.
    2. Where, in an action for the possession of personal property, the plaintiff gives bond and receives possession of the property, and the cause is tried by a jury, the jury, regularly, in case of finding for the defendant, should assess the value of the property, as also the damages.

      Appeal from Si. Louis Court of Common Pleas.

    The facts sufficiently appear in the opinion of the court.

      Krum 4* Harding, for appellant.
    I. The court below erred in directing the clerk to disregard the finding of damages contained in the verdict of the jury and to enter judgment for the defendant, with an order for a future assessment of damages. If a jury return an imperfect verdict, they may be directed to retire and correct it. (2 G-reenl. R. 8T; 1 A. K. Marsh. 67.) But where the jury themselves have erred in matter of substance, as by finding for the wrong party, or , for a larger or smaller amount than was proper, and have separated, the court can not amend tbe verdict, though it may set it aside and grant a new trial. (2 G-reenl. R. 37; 7 Mete. 46.) In this case the verdict was in form and needed no amendment. The jury found upon the issues which the court itself had directed them to find upon. The court having charged the'jury with the assessment of damages, their verdict so affected the rights of the parties as to place it beyond the power of the court in respect to the amendment ordered.

      Me Clellcm, Moody Sf Hillyer, for respondent.
    I. The error complained of could in nowise affect the rights of the plaintiff. The only party who had any reason to complain was the respondent. The court instructed the jury erroneously no doubt; but how could it affect the plaintiff’s right ? - .The court properly disregarded that portion of the verdict concerning the damages, and regarded it simply as a verdict for the defendant. The defendant lost his damages, and recovered only the value of the property as assessed by the court. He is the only party that suffered by the ruling of the court.
   Naptok, Judge,

delivered the opinion of the court.

The proceedings in this action, which under common law forms would have been replevin, are regulated solely by the statute. Where the plaintiff is nonsuited, a writ of inquiry must issue to ascertain the value of the property, if the plaintiff has possession of it, and to assess the damages for its taking or detention. Where, however, the case is tried, the jury should regularly assess the value of the property taken in case of a finding for the defendant and where the plaintiff is in possession, and should also assess the damages. This can all be done and ought regularly to be done by the same jury. The ascertainment of the value of the property is essential, as the judgment in such cases must be against the plaintiff and his securities, that he return the property taken or pay the value so assessed and the damages and costs.

In this case, under instructions from the court, the jury merely assessed the damages in their verdict for the defendant, but did not assess the value of the property. The court, treating the verdict as simply one for the defendant upon the main issue, and disregarding their finding of the damages, refused to set it aside on account of the failure to find the value, but let it stand as a verdict for defendant, and ordered an inquiry to ascertain the value of the property taken, which was accordingly made by the court, neither party requiring a jury.

The proceeding was not regular, but we do not perceive how the plaintiff could possibly be injured by it. The finding for damages against the plaintiff was disregarded, and in the inquiry afterwards had no damages were assessed, but the value of the property was ascertained and a judgment entered for its return or the payment of its value, without damages. The only purpose which the plaintiff could have in view by such a motion would be a new tidal on the merits, and this he demands, not because any error was committed in the trial before, so far as they are concerned, either by the court or jury, but simply because the jury failed to find, as they should have done, the value of the property — a matter which could only be prejudicial to the defendant.

Judge Richardson concurring, the judgment is affirmed.

Judge Scott,

dissenting. I know no law nor practice which warrants the trying one-half of a cause by one jury and the other half by a different jury. If the jury first sworn to try the cause failed to assess the damages, their verdict should have been set aside, and a venire de novo awarded. There was no authority in the court to have summoned a second jury to supply the omissions of the jury first sworn. After the court had determined that there should be a second jury, there was no waiver of the error in consenting that the assessment of damages should be made by the court.


text:
    Labarge, Respondent, v. Renshaw, Appellant.
    1. A. and B. made an exchange of lands, each party agreeing to pay one-third of all taxes for the year assessed upon the land sold by him to the other, and two-thirds of the taxes assessed upon the land bought by him from the other. A. paid to B. the proportional share of the taxes agreed upon. B. did the same. Among the taxes assessed against the land sold by A. to B. was a railroad tax. This tax A. was by law exempted from paying by rea son of his being a stockholder of a railroad company. He did not actually pay said tax, but, in his account with the collector, he was credited with the amount of the railroad tax by reason of his having previously paid his subscription of stock to an equal amount. At the time B. made his payment to A. of the agreed proportional share of the taxes, he did not know that A. was a stockholder and therefore exempt from paying the railroad tax, and that he had not actually paid it. Held, that B. was not entitled to recover back the two-thirds of the railroad tax paid by him to A.

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

    This was an action to recover back $102.66 alleged to have been paid by plaintiff to defendant under a mistake of fact and induced by the fraudulent representations of defendant. The cause was tried by the court without a jury upon an agreed statement of the facts. The facts thus agreed upon are substantially as follows: Labarge, the plaintiff, and Ren-shaw, the defendant, on the 10th of May, 1855, made an exchange of lands. By instrument under seal it was agreed between the parties that the state,' county, city and railroad taxes for the year 1855 should be apportioned between the parties as follows: “ The said Renshaw shall pay one-third, and the said Labarge two-thirds, of the whole amount” of taxes assessed upon the land conveyed by Renshaw to La-barge. In like manner, it was agreed that Labarge should pay one-third, and Renshaw two-thirds of the whole amount of taxes, city, state, county and railroad, assessed upon the land conveyed by Labarge to Renshaw. The whole amount of taxes assessed upon the land conveyed by Renshaw to Labage was $363. This sum included $154 railroad tax. Renshaw, being one of the original stockholders of the Pacific Railroad and having paid up his subscription of stock, was exempted by law from paying the said railroad tax of $154. He did not in fact pay said railroad tax of $154 or any‘part thereof. In his account with the tax collector, he was, however, credited with the payment of said tax, he not yet having had credit for the full amount subscribed by him. La-barge paid to Renshaw the agreed proportional share of the taxes, including two-thirds of said railroad tax of $154. Labarge did not know at the time of making this payment that Renshaw was a stockholder and had not actually paid the railroad tax. Renshaw, in compliance with the agreement above stated, paid to Labarge the agreed proportional share of the taxes — one-third of the taxes assessed upon the land sold by him to Labarge, and two-thirds of the taxes assessed upon that bought by him from Labarge. This action is brought to recover the sum of $102.66 — two-thirds of said railroad tax of $154. The court found for the plaintiff.

      Biddlecome, for appellant.
    I. The plaintiff only complied with his agreement in paying two-thirds of the railroad tax. Renshaw, by owning stock, was in the position of one who had prepaid or advanced the tax. The appellant was liable for the taxes when the exchange of land was made. If he had not been a stockholder, he would have been entitled to the stock certificate under the provisions of the law. (Sess. Acts, 1853, p. 136, §31.)

      Whittelsey, for respondent.
    I. The defendant did not actually pay the railroad tax, and therefore could not demand of plaintiff the two-thirds thereof. If the tax had been actually paid, the plaintiff would have been entitled to a certificate, which would have given him the amount he paid in stock of the company; but the defendant deprives him of this, keeps his own stock, and obtains $102.66 from the plaintiff without any consideration whatever.
   Scott, Judge,

delivered tlie opinion of tlie court.

We do not see on what ground the plaintiff can maintain this action. Suppose he recovers; on what principle will he be discharged from his contract with the defendant to pay the tax, the subject of this suit ? If the defendant had refunded the money in controversy, would he not have had an immediate right to recover it on the contract by which the plaintiff bound himself to pay it ? And if the plaintiff recovers in this suit, will not that right revive ? If the defendant has injured or defrauded the plaintiff, let him sue and recover his damages. The only injury the plaintiff could have sustained, if any, was the loss of the stock to which the payment of the railroad tax would have entitled him. All that he could recover would be the value of that stock. But was the plaintiff entitled to any stock for the railroad tax paid on the Morrison property ? That property was assessed as the defendant’s ; he was liable for the railroad tax by reason of his contract and title thereto, and he was the person entitled to the railroad tax upon the payment of the tax. Now if he has procured another to pay the tax, will not such payment, under the thirty-first section of the act entitled “ An act to authorize the formation of railroad associations and to regulate the same,” approved February 24, 1853, (Sess. Acts, 1853, p. 121,) enure to his benefit ? If the plaintiff’s action was for fraud or misrepresentation or mistake only, without regard to the contract between the parties relative to the payment of the taxes, then, if he recovered the sum paid, he would still be bound under his contract to repay the same. The plaintiff’s situation would not be bettered by succeeding in this suit. We do not see what difference it makes in the case, that the law furnished the defendant with an easy way of paying the tax — if it may be called easy, when he had advan ced every cent of the money for the stock which he received, That was his good fortune. It placed the plaintiff in no worse situation. It created no loss to him, and he has no cause to complain, as under the section of tlie act referred to be could not have gone into, the market and purchased stock with which he might pay his tax. Only such stock was available for that purpose as was iix good faith subscribed by the tax payer using it. It does not appear that the plaintiff was a stockholder by a bona fide subscription; he then could only have paid this tax in money. The defendant has paid it for him. He has repaid the defendant, and now would recover it from him in order that he might by another suit be made to pay it again.

The other judges concurring, the judgment is reversed.


author: Soott, Judge,

text:
    The State, to use of Bank of Missouri, Plaintiff in Error, v. Hawkins et al., Defendants in Error.
    1. A. was appointed attorney for a bank for a term of two years. His compensation as such attorney was three per cent, upon all collections made by him in the county in which the bank was located, and five per cent, upon all collections made out of said county. During his term of office, he obtained judgment in favor of the bank upon a claim deposited in his hand for collection. Held, that he was entitled to his three per cent, commission on the amount recovered, whether he received the money on the judgment during his term of office or not.
    2. An attorney of record in a cause is authorized to receive payment of a judgment recovered therein; Those dealing with such an attorney will not be affected by any arrangements entered into by him with his client, or by a revocation of his authority of which they have no notice.

      Error to Marion Circuit Court.

    This was an action against Benjamin M. Hawkins and his sureties on his official bond. The breach assigned was the making of a false return of a writ of execution. The cause was tried by the court without a jury. The facts as they appeared in evidence are substantially as follows: On the 3d of February, 1855, by a resolution of the board of directors of the Branch of the Bank of the State of Missouri at Palmyra, Thomas L. Anderson was declared duly elected attorney for the bank “ for two years next ensuing.” Anderson was to receive the same compensation as that paid to his predecessors in office — three per cent, on all collections made in the county of Marion and five per cent, on all collections made out of said county. During his term of office, he instituted suit in favor of the bank upon a bill of exchange deposited in his hands for collection. On the 4th of December he recovered judgment in this suit against the defendants therein, William Shoot and others. On the 31st of January, 1856, the board of directors of the bank elected John D. S. Dryden attorney of the bank in the place of said Anderson. On the 20th of April, 1857, the board of directors passed the following resolution: “ Resolved, that Thomas L. Anderson, Esq., the late attorney of the Branch of the Bank of the State of Missouri at Palmyra, be, and he is hereby, requested and directed to surrender to JohnD. S. Dryden, the present attorney, the charge, conduct and management of all suits, judgments and executions now pending for debts due this Branch, and to deliver to said Dryden all notes, bills and evidences of debt due this Branch in his (said Anderson’s) possession.” A copy of this resolution was furnished to Anderson on the 23d or 24th of April. On the 29th of April, 1857, Anderson received from Shoot, one of the defendants in said suit, the amount of said judgment. On the same day he tendered said sum so received, less three per cent, thereof, to the cashier of the bank. The cashier refused to receive any thing less than the whole amount of the judgment on the ground that Anderson was not attorney of the bank and hence not entitled to charge commissions. Previous to the payment of the amount of the judgment to Anderson, and early in April, said Shoot had, in an interview with the cashier of the bank, stated that “ he wanted no execution issued” on the judgment in the above mentioned suit. The cashier, in reply, stated that the matter was beyond his control, and referred him to the attorney of the bank, Mr. Dryden, as having the matter in his charge. On the 12th of May, 1857, Mr. Dryden, as attorney for the bank, procured the issuing of an execution on said judgment against Shoot and others. On this execution, -Mr. Dryden’s name was endorsed as attorney for the bank. On this execution, on the 29th of May, 1857, Mr. Anderson made the following endorsement: “ The debt and interest on the within execution has been paid to me in full, and the sheriff will return this execution satisfied. May 29, 1857. Thomas L. Anderson, attorney for plaintiff.” In obedience to this direction, the sheriff did, on the first day of June, 1857, return said execution “ satisfied, by order of plaintiff’s attorney.” Whereupon the present suit was instituted against the sheriff and his sureties on his official bond for making a false return.
    The court gave the following instructions at the instance of the defendants : “ 1. If the debt against Shoot and others was placed by plaintiff in the hands of Thomas L. Anderson, as attorney at law, for collection, under an agreement that said Anderson should have for his services in collecting said claim three per cent, on the amount collected, and that under said agreement said Anderson instituted suit against said Shoot and others and obtained judgment, and that before the execution issued said Shoot paid to said Anderson the full amount of said debt, and that said Anderson tendered the full amount so collected to plaintiff less three per cent, for his services, and that the sheriff was notified of the above facts by said Anderson and directed by said Anderson to return said execution satisfied, then the plaintiff can not maintain this action and the verdict should be for defendants. 2. If Thomas L. Anderson was the attorney of record, a payment to him by the defendants in the execution of the amount due is a discharge of the judgment by the law of Missouri, and it was his duty to stop the execution, and the sheriff was bound to obey his order/”
    The plaintiff asked the court to give the following instructions or declarations of law : “ 1. If it appear from the evidence that Thomas L. Anderson, Esq., was appointed by the relator her attorney on the 3d of February, 1855, to hold for the term of two years next thereafter, and that his said term of two years had elapsed and expired before the receipt by said Anderson of said sum of 1886.75 from Shoot and others, defendants in the judgment of the Hannibal court of common pleas, then the receipt of said sum by said Anderson was not a payment to or binding upon the relator, nor a discharge or satisfaction of the judgment of the bank against Shoot and others or any part thereof, and the court ought to find a verdict for the plaintiff. 2. Unless it appears from the evidence in the cause that at the time Thomas L. Anderson, Esq., received the said sum of $886.75 from said Shoot and Westfall, he was the attorney of the said relator, his receipt of the same was not binding on the relator, nor did it discharge the said judgment in favor of the relator against said Shoot and others, and the court should find a verdict for the plaintiff. 3. If it appear from the evidence in the cause that prior to the receipt of the said $886.75 by Thomas L. Anderson, Esq., from Shoot and Westfall, the relator had dissolved the relation of attorney and client between him and her, and revoked his (said Anderson’s) authority to receive and collect the money due and owing on said judgment of the Hannibal court of common pleas, then the receipt of said sum of money by said Anderson was not binding upon the relator, nor did it discharge said judgment or any part thereof. 4. Although it may appear from the evidence in the cause that Thomas L. Anderson, Esq., was the attorney of the relator, the bank, in the recovery of the judgment in the common pleas against Shoot and others, yet if it further appear from the evidence that, prior to the receipt of said sum of $886.75 by said Anderson from the defendants in said judgment, the relator had dissolved the relation of attorney and client between him and her, and revoked his (said Anderson’s) authority to receive and collect the money due and owing on said judgment, and that the defendants in said judgment, prior to the receipt of said sum by said Anderson, had notice of the said revocation of said Anderson’s authority, then the receipt of said sum of money by said Anderson was not binding upon the relator, nor did it discharge or satisfy the said judgment or any part thereof. 5. If it appear from the evidence in the cause that said Thomas L. Anderson, Esq., was appointed by the relator on the 3d of February, 1855, her attorney to hold for the term of two years next thereafter, and that his term of two years had expired before his receipt of said sum of 1886.75 from Shoot and others, defendants in the judgment of the Hannibal court of common pleas, and that said Shoot and others, at the time or prior to the payment of the said sum to said Anderson, had notice that his said term had expired, and that he had no authority to receive for the relator, then the payment of said sum to said Anderson was not a payment to or binding on the relator, nor did it discharge the said judgment or any part thereof.” Of these instructions the court gave that numbered two and refused the others. The court found for the defendants.

      Dryden and 11. M. Jones, for plaintiff in error.
    I. Anderson’s relation to the bank was that of an attorney only. Whenever he ceased to be attorney at law for the bank, all authority to act for it in any capacity ceased. The bank might at any time revoke his authority, even during the term for which he was originally appointed. The length of the term the bank determined. Whenever a revocation was made, all authority ceased. His authority was by its very nature revocable. Anderson’s authority ceased with the expiration of his term of office. He was superseded by the new appointee. No further revocation was needed. We have, however, a formal resolution of the board of directors as explicit as possible. After this revocation, he had no authority whatever to act for the bank. He could not control suits of the. bank, whether they had ripened into judgments or not. He ceased to be attorney for the bank. All agency whatever ceased. He was not authorized to receive payment of the judgment. Payment to him was not payment or ex-tinguishment of the judgment. He was not authorized to control the execution in any way. He could not lawfully order the clerk to issue it. He could not interfere to in any way control or direct the sheriff in the execution or return of the writ. The question whether Anderson was or was not entitled to his three per cent, upon the amount recovered is not involved in this case. Let it be granted that he was so entitled, that was a matter between him and the bank with respect to services already rendered. The question at issue is one of agency, of authority to represent the bank after it had done all it could to revoke the authority. All the parties, both the defendants in the judgment and the sheriff, knew that Anderson’s authority had been revoked and that Dryden was the attorney of the bank. The court below decided the cause upon the ground that the bank could not revoke. It ignored all questions of notice of revocation.
    Anderson, for defendants in error.
    I. Anderson as attorney was authorized to receive the amount of the judgment. Whether he was or not, the sheriff was justified in obeying his directions. He was the attorney of record. The sheriff had no notice given him that Anderson, the attorney of record, had been superseded by any other attorney. (See Langdon v. Potter, 13 Mass. 363; 1 Dana, 425.) Anderson had a lien on the amount collected for his fee. He was entitled to deduct his fee. (Wright, 485 ; 11 N. H. 163; 15 Term. 544.)
   Soott, Judge,

delivered the opinion of the court.

Under the contract with the bank for the collection of her debts, we are of the opinion that Anderson was entitled to his commission for collecting the judgment in the suit which has given rise to this controversy. As he had performed all that was necessary to receive the money, he was, under the contract, entitled to his fee, and the bank could not, by refusing to reappoint him to the office he held, deprive him of it. Anderson held a double relation to the bank — one growing out of his appointment as her attorney, and the other arising from the contract in relation to the collection of her debts. The termination of one of these relations did not necessarily destroy the other. There need have been no misunderstanding on this subject, as the bank could have made her contracts in such way as to avoid all controversy. The interpretation we give the, contract subjects the bank only to the payment of one commission, and, as between Anderson and his successor, justice would award it to Anderson.

But this suit is not against Anderson, but against the sheriff, who, by Anderson’s order as attorney for the bank, returned the execution satisfied. The bank maintains that this return is false, that Anderson was not her attorney, and that he had no right to receive the money. Anderson, after receiving the money, tendered to the bank the amount less his commission, but she refused to take it, insisting on her right to the whole without any deduction by way of fee or commission. Anderson was the attorney for the bank, appointed for two years by a resolution of the board of directors, and obtained the judgment, on which the execution was issued, before his term expired, but did not receive the money until he was replaced by another in his office. He was the attorney of record for the bank in the suit in which the execution issued. So he was a general attorney for the bank and he was the attorney of record in the suit in which he received the money.

The attorney of record is authorized to receive the money collected on a judgment recovered by him for his client. Those dealing with such an attorney can not be affected by any private arrangements between the attorney and client by which the extent or duration of the power of the former may be limited. The books say that an attorney of record can not be changed but by an order of court. There is some policy in this rule, as by our statutes the attorney of record in some cases is made the person to receive notices. If a change of attorney can be made secretly without any notice, a door would be-opened for collusion by which these statutes would be evaded and suitors might be entrapped.

There is nothing which prohibits a client from authorizing as many persons as he pleases to receive his money, and if they do receive it, so far as he is concerned, he will be bound by their act. But if there is an attorney of record, the authorizing of another by a client to receive the money on an execution does not divest an attorney of record of his authority. The client may authorize as many as he pleases to act for him without intending to revoke any authority he has previously bestowed. So equivocal an act as an authorization to another to receive money would not be notice that the attorney of record was displaced. Had the defendant known that Dry den was the attorney of the bank at the time he paid the money to Anderson, that would have been no notice that the authority of Anderson, as attorney of record had been revoked. No opinion is given on the question whether an attorney of record can be changed otherwise than by leave of the court. In my opinion, there is no evidence here that Anderson’s authority as attorney of record had been recalled such as should affect any one dealing with him in that character.

Napton, Judge, concurs in affirming the judgment.


text:
    Shephard et al., Plaintiffs in Error, v. St. Charles Western Plank Road Company, Defendants in Error.
    1. Certain, contractors agreed with a plank road company “to do the necessary masonry, grading, gutters and all things else pertaining to the complete graduation and masonry” of a division of the plank road. The company agreed to pay “ at the rate of sixteen cents per cubic yard for ah excavation of earth done on said road under this contract.” Unexpectedly to both contracting parties, the contractors, in fulfilling their contract, met with a large amount of indurated earth and cemented gravel, which they excavated. Held — it appearing that among engineers and contractors indurated earth and cemented gravel were known and recognized as entirely distinct from common earth, and that it was customary for contractors to receive extra compensation for excavating such materials — that the price to he paid the contractors for the excavation of such materials was not provided in the contract, and that consequently they might recover what the same was reasonably worth.

      Error to St. Lonis Circuit Court.

    William Shephard and Thomas Spence contracted with the St. Charles Western Plank Road Company “ to do the necessary masonry, grading, gutters and all things else pertaining to the complete graduation and masonry of the first division of the St. Charles Western Plank Road.” It was further stipulated that the company would pay the contractors “ at the rate of sixteen cents per cubic yard for all excavation of earth done on said road under this contract; two dollars and sixty cents per perch of twenty-five cubic feét for masonry laid in approved lime mortar, and two dollars and thirty cents per perch as aforesaid for dry masonry.” It was further agreed that all estimates made and certified by the engineer should be “ conclusive and final, without the right of either party to appeal therefrom under any pretext whatever.” In the “ specification” accompanying the contract it was stipulated that “ the trees shall be cut down and cleared oil in all cases to a width not less than thirty feet on each side of the centre line of the road.”
    This suit was brought to recover extra compensation for the excavation of -indurated earth and cemented gravel, and for grubbing and clearing the roadway of trees, and for a small amount due on contract according to the estimates made. The court, at the request of defendant, instructed the jury as follows : “ 1. The contract with the specifications given in evidence in this case requires the plaintiffs to do all the work necessary for the grading of defendant’s road, and plaintiffs are not entitled to recover any thing for excavating the indurated or cemented earth or gravel, or for clearing of grubbing the tract of said road, beyond the price stipulated in the contract.” The jury found for plaintiffs in the sum of $158.72, an amount due to plaintiffs under contract as interpreted by the court. The character of the testimony introduced sufficiently appears below in the opinion of the supreme court.

      N. D. Sf C. P. Strong, for plaintiffs in error.

      I. The plaintiffs were entitled to extra compensation for excavating the indurated earth and cemented gravel. The price of this work was not fixed by the contract. The court should have granted a new trial on the ground of newly discovered evidence. (Bubois v. Delaware & Hudson Canal Co. 12 Wend. 334 ; 15 Wend. 87; 6 Greenl. 479 ; 2 Wash. C. C. 411.)

      Coalter and Lewis, for defendant in error.
    I. The work for which extra compensation is claimed by plaintiffs was embraced within the terms of the contract, and plaintiffs were entitled to nothing beyond the compensation provided therein. (See Boyle v. Agawam Canal Co. 22 Pick. 381.) The engineer’s estimates were conclusive. (11 Gratt. 676; 7 M. & W'. 313 ; Russell on Arbitr. 104; 9 Gill. 288 ; 16 Penn. 469; 27 Engl. L. & Eq. R. 35.) The plaintiffs recovered all they were entitled to. The instructions asked were properly refused. (21 Mo. 404.) The application for a new trial was properly refused. (1 Gra.-& Wat. on New Trial, 473 ; 3 Id. 1046, 1067 ; 22 Mo. 563 ; Chitt. on Oontr. 541.)
   Scott, Judge,

delivered the opinion of the court.

There is no doubt that by the terms of the contract the plaintiffs were bound to make all the excavations necessary to grade the road, of whatever materials they were composed; and, had they agreed to make the excavations at a certain price, they would have been bound to do it, notwithstanding the material of the excavation was different from what it was supposed and the removal of it was attended with a greatly increased cost. This is the principle of the case of Boyle v. Agawam Canal Co. 22 Pick. 381, relied on by the defendant, and in which we entirely concur. This is a familiar principle and applicable to all contracts of the kind.

But the question in this case is, not what work the contract contemplated was to be performed, but what was the price to be paid for it. It is scarcely necessary to observe that the terms of a written contract can not be varied or added to by parol evidence. But this principle does not prevent the showing that a contingency has arisen not provided for in the contract. The evidence of the engineer satisfies us of the correctness of the view we take of this contract. He says it was supposed that the excavations would consist of ordinary earth; that among engineers and contractors there was a marked distinction between common earth and indurated or cemented earth and gravel; and that earth excavation would not be held to include cemented gravel; that it was worth more to excavate the latter than the former.

By the contract, sixteen cents for the cubic yard was the price agreed upon for earth excavations. It is clear from the evidence that this was the usual price of excavating ordinary earth, for all the witnesses testify that the excavating of in-durated earth or gravel was worth a sum greatly exceeding the cost of excavating ordinary earth. It would thus appear that the defendants did. not make a contract involving any hazard. They did not for a given sum undertake to do the excavation, assuming the risk of the material of which it was composed, for the price fixed was such a one as was usually paid for removing ordinary earth. The contract then only fixed a price for excavating ordinary earth. As it was supposed that there would be nothing but ordinary earth to remove, the contract only provided a price for such excavations, leaving excavations of a more costly material unfixed as to price, as it was not supposed that there would be any such to bo made. This view of the subject is fully shown by the evidence of the engineer of the company, who surveyed the road in company with one of the plaintiffs, and who we must suppose disclosed all his knowledge to those who employed him.

Although by the terms of the contract the defendants were bound to make all the excavations necessary for grading the road, of whatever material they were composed, yet it does not follow that the price for removing one kind of material was that agreed upon for every kind. The obvious and most natural sense of tbe words “ excavation of earth,” is the ordinary earth; for, if it was intended by the word “ earth” to include all materials whatever found beneath the surface of the ground, there would have been no necessity for any specification of the material, for the word “ excavation,” without any other limiting its signification, would have been most appropriate to express the minds of the parties. The expression of one thing is the exclusion of another. As among contractors and engineers the terms excavation of rock,” “ excavation of indurated earth or gravel” and the excavation of earth,” meaning ordinary earth, were known, signifying different kinds of work varying greatly in cost, can any thing be plainer than that the use of one of these terms is an exclusion of the other ? The law appropriates no such signification to the terms “ excavation of earth,” nor are they technical words whose sense may not be controlled by extrinsic evidence when they are used in connection with any particular trade or business. So the ordinary and customary sense of the terms of the contract are against the defendants.

If no price was fixed for the excavation of the indurated gravel, then it was not within the contract, and the engineer had no authority to make an estimate of it. The defendant would be entitled to recover what it was reasonably worth. The engineer allowed extra compensation for excavating a portion of the indurated gravel because he thought it was right. If it was right to pay for a part, why was it not right to pay for the whole ? If the estimate of the engineer was conclusive, as was contended for the defendant, we do not see on what ground the plaintiffs did not recover the amount of it, if it was right in part. From the evidence of the engineer it appears that he was of the opinion that it would be right to pay the plaintiffs an extra compensation for excavating the indurated gravel.

We are of the opinion that the clearing of the road-bed admits of different considerations from those arising out of the excavating the indurated gravel. The trees standing in the road were visible and it was known that they must be removed. The specifications forming a part of the contract provided that the trees should be removed, and the excavation of the earth could not be done without first taking them away.

The other judges concur.

Reversed and remanded.


author: NaptoN, Judge,

text:
    Carson, Respondent, v. Ely, Appellant.
    1. Judgment affirmed.

      Appeal from St. Louis Court of Common Pleas.

    This case has heretofore been before the supreme court. The decision of the supreme court therein is reported in 23 Mo. 265.

      Erum ¡f Harding, for appellant.

      Gantt, for respondent.
   NaptoN, Judge,

delivered the opinion of the court.

It seems that the contract in this case was made with Carson as agent of the St. Louis and Chicago Transportation Line, and the goods were to be forwarded without St. Louis charges. Carson, however, was not only the agent of the transportation company, but was doing business as a general commission and forwarding merchant. When the goods reached here from New Orleans, their condition was such as not to admit of being forwarded under the contract. It was necessary, at least so far as a portion of them was concerned, that they should bo landed here and the casks undergo some repairs. This was done by Carson and the goods were subsequently forwarded, and this suit was to recover the expenses incurred in cooperage, <fcc., and for the usual commissions. The jury have found that Carson, as agent for the transportation line, refused to receive and forward the goods; that be was justified in so doing by reason of their condition, which rendered it impossible to send them on directly under the contract; that he received the goods and incurred the charges for putting them in order as the general consignee, and that the charges, expenses, &c., were reasonable. Under these circumstances we do not feel warranted in disturbing the verdict and judgment. The case seems to have been tried upon the principles laid down by this court when it was here before, and we shall affirm the judgment.


text:
    The St. Louis, Alton and Chicago Railroad Company, Defendant in Error, v. Castello, Plaintiff in Error.
    1. Where a sheriff in St. Louis county levies an execution upon personal property, a third person claiming the same may maintain an action against the sheriff for its possession without making claim thereto in accordance with the third section of the local act of March 3, 1855. (Sess. Acts, 1855, p. 464.)
    2. A sheriff, under an execution against A., levied upon a lot of gold and silver and copper coins and paper currency belonging to B.; B., with a view to facilitate the institution of a suit by himself to test his title, substituted, in the hands of the sheriff, for the property levied on, bank bills of large denomination, the exchange being made by him and the sheriff under the understanding that suit would be brought by B. for the possession of the bank bills thus substituted. Held, that B. might, under such circumstances, maintain an action against the sheriff for the possession of the bank bills.

      Error to St. Louis Court of Common Pleas.

    This was an action against James Castello, sheriff of St. Louis county, to recover possession of six bank bills — five bills of the denomination of one hundred dollars, and one bill of the denomination of fifty dollars, all bills of the Bank of the State of Missouri. The facts as they appeared in evidence at the trial are substantially as follows : Under an execution in favor of one Joseph Farrell and against the Chicago and Mississippi Railroad Company, Castello, the defendant in the present suit, as sheriff, levied on a lot of gold, silver and copper coins and paper currency. The moneys thus levied on did not belong to the defendant in the execution but to the St. Louis, Alton and Chicago Railroad Company. There was evidence tending to show that, while the moneys thus levied on were in the hands of the sheriff, the St. Louis, Alton and Chicago Railroad Company substituted therefor the bank bills sued for in the present action ; that this substitution and exchange were made to facilitate the institution of a suit by said company in assertion of its title, and under an understanding that the property thus substituted should be considered the property levied on instead of that first taken. Among other instructions which the court gave was the following: “3. If the court believe from the evidence that the bank bills mentioned in the plaintiff’s petition were the property of plaintiff, and were substituted for the property first levied on by the defendant, which was also claimed to be the property of the plaintiff, by agreement between plaintiff and defendant, for convenience in bringing a suit for the delivery of the same, with the understanding that it should be considered the property levied on instead of that first taken, and that it was so exchanged with notice that it was not the money of the defendant in the execution, and that it would be taken out of the defendant’s hands, by an order of the court, in a suit for the claim and delivery of property, then such exchange is not a voluntary payment to the sheriff, and the plaintiff is entitled to recover in this action.”
    The court found for the plaintiff.

      II. N. Hart, for plaintiff in error.
    I. The money first levied on was never claimed by plaintiff. We have.no facts to establish that it ever did belong to it. The five one hundred dollar bills and the one fifty dollar bill did belong to the comyany, yet, as they voluntarily exchanged them with the plaintiff for different property, which was levied on, and as no levy was made on said bills, the defendant was entitled to a judgment, and the court improperly gave the instructions for the plaintiff.

      G. P. Strong, for defendant in error.
    I. It was not necessary to make claim to the property according to the provisions of the third section of the local act of March 3, 1855. (Bradley v. Holloway, 28 Mo. 150.) There is no ground for contending that the bills sued for were paid on the execution as a voluntary payment. The understanding under which the substitution was made was fairly submitted to the jury.
   NaptoN, Judge,

delivered the opinion of the court.

The liability of the sheriff to an action of replevin, under the circumstances of this case, is settled in the case of Bradley v. Holloway, 28 Mo. 150.

The exchange of bank notes for the convenience of bringing suit could not, of course, be regarded as a voluntary payment to the sheriff, or a waiver of claim on the part of the railroad company, and the understanding of the parties to it at the time of its occurrence having been submitted as a fact to be passed upon under proper instructions, there is no ground for disturbing the verdict and judgment. The other judges concurring, the* judgment of the court is affirmed.


text:
    Ames, Respondent, v. Orme, Appellant.
    1. Judgment affirmed.

      Appeal from St. Louis Law Commissioner's Cowt.

      Goodlett, for appellant.

      A. M. 8f S. H. Gardner, for respondent.
   Napton, Judge,

delivered the opinion of the court.

This case was tried under instructions to which each party assented, and upon testimony which was admitted without objection from either side. The dispute involved really no legal questions; but were questions of fact suitable for a jury, and as tbe jury have passed upon them, and tbe court bas sanctioned tlieir verdict, there is no ground for tbe interference of this court. Judgment affirmed.


text:
    Moies et al., Respondents, v. Eddy, Appellant.
    1. It is the province of the jury to determine questions of fact at issue in a cause; the court should not direct them to draw inferences that are not legal inferences.

      Appeal from St. Louis Gowri of Common Pleas.

    This was a suit against the defendant as endorser of a promissory note. The defence relied on was that tbe consideration for said note bad failed, or that, by tbe wrongful taking of certain personal property, which bad been conveyed to defendant’s trustee to secure defendant against his liability on account of bis endorsement, the plaintiffs became liable to him to an amount exceeding the amount of tbe note. It is deemed unnecessary to set forth the facts more fully.

      Krum 8f Harding, for appellant.
    Hitchcock, for respondents.
   NaptoN, Judge,

delivered tbe opinion of tbe court.

The latter part of tbe second instruction given for tbe plaintiff in this case was erroneous. Tbe jury were directed to infer an intention on tbe part of Eddy to relinquish bis security from his knowledge of tbe fact that the burr mills were returned when be endorsed tbe note sued on and his failure to make any objection. Such an inference is not a legal one, nor, as a matter of fact, does it necessarily follow. When tbe defendant took his deed of trust upon tbe Harrison burr mills and other machinery, he was apprized of tbe understanding that tbe mills were to be exchanged for others if they did not suit, and his failure to object to their removal may very well have arisen from a belief that the substituted mills would be covered by the deed of trust. Whether such an opinion would have been well founded or not in law is not material, but, if entertained in fact, it would rebut any conclusion that it was his intention, when he assented to the removal of the Harrison burr mills, to relinquish his security. It is stated in the bill of exceptions that the defendant also knew that these Harrison burr mills were credited by the plaintiff on Smead’s general account — a circumstance, which, if true, would certainly be very strong evidence to show an intention on the defendant’s part to relinquish his lien. But that point was not submitted to the jury by the instruction. Whether the defendant intended to give up his lien on the mills was a question of fact to be left to the jury upon all the circumstances in evidence, and his intention is not an inference in law to be drawn by the court from the single circumstance of his silence when the mills were returned with his knowledge. Judgment reversed and cause remanded ;

the other judges concur.


text:
    McKee, Plaintiff in Error, v. The Phœnix Insurance Company, Defendant in Error.
    1. Should an insurance company ■wrongfully refuse to receive premiums due on a life policy, the assured may treat the policy at an end, and may recover hack all the premiums paid under it.
    2. Where the life of a husband is insured for the benefit of the wife, the policy is not necessarily determined by the wife's obtaining a divorce from the husband; she may still have, it seems, an insurable interest in the life of the divorced husband that will support the policy.

      Error to St. Louis Cowrt of Common Pleas.

    Demurrer to a petition. The petition is as follows: “ Plaintiff states that the defendant is indebted to her in the sum of 1548 for money had and received to and for the use of said plaintiff, as by the following account will appear; [here follows an account of cash payments commencing May 12, 1849, and ending November 12, 1855, amounting to $548 ;] all of which will also appear by reference to the endorsements on a certain policy of insurance which will be herewith filed. Also in the sum of $1,452 for damages on account of a breach of contract by the said defendant, the particulars of which are as follows: On the 12th day of May, 1849, plaintiff was the wife of Hiram McKee, by whom she had four children, then and now living. She determined, with her own means procured by her own labor and economy, to avail herself of the benefits held out by the defendant, and insured the life of her husband. A contract was made with said defendant to that effect on the terms and conditions contained in the policy aforesaid. Afterwards her husband went to California, whereby she was required by said defendant to pay an additional sum of fifty dollars, which she paid as shown by exhibit B., which will be herewith filed, and which is included in the foregoing account. Afterwards, on account of her husband remaining in California and abandoning her, she applied for and obtained a divorce, to-wit, in the month of October, 1854, and after said time continued to pay the semi-annual instalments required by said policy, which the defendant continued to receive till the 12th day of May, 1856, at which time plaintiff offered to pay said instalment then due, being thirty-five dollars and fifty cents, and tendered the same within the time required by said policy, which they refused to receive; and have thereby in other respects broken their aforesaid contract with the plaintiff. Whereby the plaintiff is entitled to recover said damages so as aforesaid claimed. Plaintiff prays judgment for said sum of $548 and interest, and for said damages of $1,452.”.
    By the policy of insurance filed with the petition the Phoenix Insurance Company assured “ the life of Hiram McKee, of the city of St. Louis, in the county of St. Louis, state of Missouri, for the sole use of the said Nancy Pettit McKee, in the amount of two thousand dollars, for the term of his natural life.”

      The defendant demurred to this petition on the ground, first, that when the plaintiff was divorced from her husband, she had no further interest in his life, and could not recover on the policy in the event of his death, and second, that the payments mentioned in the petition were voluntarily made.
    The court sustained this demurrer.

      Morehead, for plaintiff in error.
    I. Plaintiff had an insurable interest. She is a creditor. She has children. She supports them. The husband is liable for that support. He is liable for the costs of the divorce. The children also have an interest in his life, and this policy was for the benefit of wife and children. The receipt of premiums after the divorce was a waiver, and a sanction of the fact that she had an interest, even if the divorce rendered the policy void for want of interest. If it should be said they had no knowledge of the divorce, we answer, that was a matter of proof. The policy did not provide for a forfeiture in case of a divorce. The policy was good and valid. The defendant having refused to receive premiums and having committed a breach of the policy, the plaintiff may recover back the premiums paid.

      S. T. Sf A. D. Glover, for defendant in error.
    I. There is no breach alleged of any contract set forth in the petition. That defendant would not receive the premiums is no breach. While the life of the husband continues no action lies on the policy. The husband is not shown to be dead. When the wife was divorced from her husband, her interest in'1 the subject insured ceased. The policy became null, and all payments made became forfeit to the insurers. (Ang. on Life Ins. 296, 823.) The demurrer was properly sustained.
   Scott, Judge,

delivered the opinion of the court.

On what ground did the company claim to hold the premiums paid after the divorce, even admitting that the divorce determines the contract ? Will tliey pretend to bold them on the ground that they were ignorant of the fact that a divorce had been obtained ? If they were ignorant of the fact, would that entitle them against all conscience to retain this unfortunate woman’s money ? The clause in the contract, that “ in every case where this policy shall cease or become null or void, all previous payments made thereon shall be forfeited to the said company,” had nothing to do with these payments; nor do we presume it will have any application where the policy ceases by the wrongful act of the company.

If the defendant (the Company) wrongfully determined the contract by refusing to receive a premium when it was due, then the plaintiff had a right to treat the policy as at an end and to recover all the money she had paid under it.

We will not undertake to say, from the pleadings in the cause, as they appear to us, that the wife, by suing for and obtaining a divorce from her husband, ceased to have such an .interest in his life as would render an assurance of it by her illegal. There seems to be a difference of opinion among jurists as to the legality of life insurances, where the party insuring has no interest whatever depending on the life of the person insured. (Philips on Ins. p. 131; Angel on Fire and Life Insurance, 307.) There is nothing in the contract as stated in the petition, which shows it to be a wagering one or in anywise contrary to public policy. We see no danger to the interests of the community in sanctioning this policy. Why should not a mother, who has four children by a man from whom she has been divorced, be permitted to insure the life of that father to whom her children may look for support ? If the care and custody of the children have by the decree of a divorce been entrusted to the mother, that will not extinguish the obligation of the father to provide for them. It is nevertheless his duty, though divorced and the care of the children taken from him, to support them. That natural obligation, by his own act, can not be impaired or destroyed.

There may be a provision decreed the wife for her support to be paid by the husband. This would in effect make her the creditor of her husband, and, being so, she would, without controversy, have a right to insure his life.

The question of the measure of damages for a breach of the contract to insure the life of the husband, he being still alive, has not been argued and we express no opinion in relation to it. Certainly the mere return of the premiums with interest would not be the standard in all cases. In many it would be very unjust, especially after the policy had continued for years and the period of existenc^jjaff Consequently been shortened. If the person wl^s<^pj^j'ij! though alive, should be laboring under ú speedily result in his dissolution, the permitted to escape the payment of the an life was assured, by putting an end to th| contra ranee. Eeversed and remanded;

Judge Napton concurring. Judge Eichardson not sitting.


text:
    St. John’s Administrator, Defendant in Error, v. McConnell, Plaintiff in Error.
    1. Judgment affirmed.

      Error to St. Louis Cowrt of Common Pleas.

      Krum Sf Harding, for plaintiff in error.

      Polk, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

The instructions given in this case were favorable to the defendant, and no exceptions were taken to them by him. There was no evidence admitted against the defendant or for the plaintiff on which any point was made in this court. The evidence was sufficient to warrant the verdict without that given in rebuttal by Bullock showing that Charles Collins was a secret partner of the firm of McConnell & Co. The affidavits filed in support of the motion for a new trial on the ground of surprise, did not make out a case for that purpose. The verdict upon the entire record is entirely satisfactory, and should not in our opinion be set aside. The other judges concurring, the judgment will be affirmed.


text:
    Ham, Respondent, v. Barret, Appellant.
    1. Where a presumption is one of fact merely, a court is not warranted in declaring it to the jury as a presumption raised hy law.
    2. The presumption of the payment of a debt, arising from the fact that a subsequent demand due on the same account and arising from the same cause has been regularly discharged, is a presumption of fact.

      Appeal from St. Louis Cowrt of Common Pleas:

    This was an action on a negotiable promissory note for 1500, dated December 15, 1852, drawn by Miron Leslie, and endorsed by the defendant Barret and discounted by the firm of Page & Bacon for said Leslie. Said note was transferred to the plaintiff, Ham, long after maturity. The defence relied on was payment. There was evidence tending to show that in July, 1854, Page & Bacon and M. Leslie had a general settlement of their business transactions and passed receipts. The plaintiff introduced in evidence a receipt dated July 8, 1854, signed by Leslie in the name of the firm of Leslie & Barret, (of which defendant was a member) acknowledging the payment in full of $500 for professional services rendered Page & Bacon. The case was submitted to the jury upon the following instruction: “If the jury believe from the evidence that the note sued on was paid to Page & Bacon before it was transferred to the plaintiff, they will find for the defendant; otherwise, they will find for the plaintiff.” The court refused the following among other instructions asked by the defendant: “ 2. If the jury believe from the evidence that Page & Bacon paid to Leslie the sum of $500 after the note sued on became due, it' affords a presumption that the note in controversy was fully discharged by them. 3. If the jury believe from the evidence that Page & Bacon, after the note in controversy became due and whilst it remained their property, paid to Leslie the sum of $500, and that Bacon afterwards stated to the witness Haskell that all accounts between the firm of Page & Bacon and said Leslie were fully settled, it is such presumptive evidence of payment by Leslie as will authorize a verdict for defendant.”
    The jury found for plaintiff.

      H. M. Jones, for appellant.

      N. D. Sf G. P. Strong, for respondent.
   Scott, Judge,

delivered the opinion of the court.

This was an action against Barret as endorser of a negotiable note; plea, payment.

We have nothing to do with the question whether the evidence was or was not sufficient to establish the fact of payment. The instructions asked by the defendant and refused by the court, of which complaint is made, were properly refused, inasmuch as they required the court to declare that to be a presumption of law, which was only a presumption of fact to be raised or not as the jury would determine from the circumstances in evidence. There are presumptions of law and presumptions of fact. The former are of a nature to exclude all contrary proof, and which the court will not suffer the jury to disregard; whilst the latter are founded in experience, and may be raised or not as the jury may determine, and for a disregard of which the court grants or refuses a new trial as upon the evidence in all other cases of trial by jury. Where a presumption is one of fact merely, the court is not warranted in declaring it to the jury as a presumption authoritatively raised by law, but should direct them that from the evidence it is their province to determine whether they will raise the presumption or not. The jury, looking to the bench for the law, would naturally take it that such a declaration was binding and left them no discretion. Where the facts are before the jury, the presumptions or inferences they warrant are questions purely for them. (Best on Presumptions, 46, 51.) Where presumptions of fact founded in experience and in the usual course of the dealings of men are not repelled by contrary evidence, they should be respected by juries, and they have no power arbitrarily to reject them. They must stand until they are overthrown by contrary proof. Presumptions of payment, arising against claims for debts alleged to remain unpaid while subsequent demands due on the same account and arising from the same cause are proved or admitted to have been regularly discharged, are presumptions of fact liable to be repelled by proof to the contrary, and to be found to have application to a case by a jury, subject to the power in the court of granting a new trial. (Matthews on Presumption, 398-9.)

The other judges concurring, judgment affirmed.


author: RichaRdson, Judge,

text:
    Boyle, Appellant, v. Hardy, Respondent.
    1. A. filed a bill in chancery against B. for a general account of a partnership. B., in his answer, set up as a defence that an account of the affairs of the partnership had been stated and settled. Upon a hearing, there was an interlocutory decree finding a settlement as stated in the answer. An amended bill being filed and leave given to either party to surcharge and falsify the account stated, said account was referred to a commissioner “ with instructions to examine the same as to errors and omissions on the footing of said account stated, and to state a balance of account and interest due to either party, from the pleadings and evidence now in this cause, and such further competent evidence as either party may produce before him in conformity to this decree.” Held, that, under this order of reference, the examination before the commissioner was confined to such errors and opinions as were specifically charged in the pleadings and sought therein to be surcharged and falsified.
    2. Though all the evidence already in the cause was before the commissioner by virtue of the order of reference, yet balance sheets made out to supply the loss of others that had been in evidence before a former commissioner would not be admissible unless supported by proper testimony.

      Appeal from St. Louis Court of Common Pleas.

    This was a bill in, chancery filed originally in the St. Lonis circuit court in the year 1847 for the purpose of settling a partnership account extending through two partnerships. Boyle, Hardy and West were partners. West sold out his interest in the partnership to Boyle and Hardy, who carried on the same business until the dissolution of their firm. Boyle by his bill sought an adjustment of the accounts of both firms. Hardy in his answer set up as a defence that an account had been stated and settled of the affairs of the first partnership. The court referred the cause to a commissioner to take an account of both partnerships, reserving the question whether there had been a settlement of the first partnership. The commissioner having reported, the court, on a hearing of the cause on the question reserved, decreed that an account had been stated and settled as charged in the answer, and gave complainant leave to amend. The complainant refusing to do this in a manner satisfactory to the court, the court dismissed the bill. This judgment was reversed by the supreme court and the cause remanded. (See Boyle v. Hardy, 21 Mo. 60.) A change of venue was then taken to the St. Louis court of common pleas. The court refusing to permit the complainant to amend in such a manner as to draw in question the validity of the account stated and settled and also to surcharge and falsify the same, the bill was again dismissed. The cause was again appealed to the supreme court, which again reversed the decree and remanded the cause, “ with directions to refer back the account stated to a commissioner, with instructions to examine the same as to errors and omissions, and with leave to the complainant to surcharge and falsify the same, on the basis of the settlement as found by the court.” The defendant having answered the amended bill of the complainant, the court decreed that the account stated and settled of the first partnership, “ as heretofore decreed by the court, do stand with liberty to either party to surchai’ge or falsify the same; and said account stated is hereby referred to Chester Harding, jr., Esq., who is hereby appointed a commissioner of this court in this behalf, with instructions to examine the same as to errors and omissions on the- footing of said account stated, and to state the balance of account and interest due to either party, from the pleadings and evidence now in the cause and such’ further competent evidence as either party may produce before him in conformity to this decree ; and it is ordered that he appoint a time and place,” &c. The commissioner, as appears from his report, on commencing the examination of the matters referred to him, “ ruled that the examination must be confined to errors and omissions in the account stated, according to the terms of the order, and to such errors and omissions only as are specifically charged .and sought to be surcharged or falsified-in the pleadings; or in other words, that the account stated must stand under the terms of the order and the condition of the pleadings, unless some one or more of the specific errors or omissions charged in the amended bill should be made out and established by .the proof.” It also appeared from the report that the commissioner excluded certain balance sheets “ made by Pagaud, inasmuch as they were not in evidence before the former commissioner, and no testimony was offered which would entitle them to admission as secondary evidence.” The commissioner reported adversely to the complainant as to each and all of the items charged in the bill as errors or omissions in the account stated. The court confirmed the report and dismissed the bill.

      Field and Holmes, for appellant.
    I. The cause should have been referred to the commissioner with instructions to review the report and to restate the account on the footing of said account settled, with leave to surcharge and falsify as insisted upon by complainant’s counsel. Considering the decree as being, in legal substance and effect, the same as that asked for by the complainant, the commissioner erred in not so taking it, and his method of proceeding in making up bis report under tbe order was erroneous. He improperly restricted tbe examination to tbe paper called an account stated and to tbe particular items therein named, and to tbe particular items specifically charged in tbe bill as errors, in tbe exact form as charged. He erred, also, in ruling that the account stated must stand unless the evidence bearing on any such specific charge should show it to be an error as a particular item in said account stated; also in ruling that tbe balance sheets should be excluded. (Twogood v. Swanston, 6 Ves. 486; Chambers v. Goldwin, 5 Yes. 834; Brownell v. Brownell, 2 Bro. Ch. 62; Bullock v. Boyd, 2 Edw. Ch. 293; Knisman v. Bake, 14 Yes. 579; Colvet v. Markham, 3 How., Miss., 343 ; Mebane v. Mebane, 1 Ired. Eq. 493; Garnett v. Carr, 3 Leigh, 407; Roberts v. Kuffin, 2 Atk. 112; 2 Dan. Ch. Pract. 190, 831; Davis v. Spurling, 1 Tam. 199 ; Earnum v. Brooks, 9 Pick. 212; Turner v. Hughes, 1 Busb. Eq. 186; 1 Hoffm. Ch. Pr. 830; Gres. Eq. Ev.' 505; 3 Greenl. Ev. § 335; Abrahams v. Hunt, 26 Penn. 49; Matthews v. Wall-wyn, 4 Yes. 125 ; Pit y. Cholmondeley, 2 Yes. sr. 566.)
    IV. _D. 8f O. P. Strong, for respondent.
    I. The court properly confirmed the report of the commissioner. He followed the order of the court referring the cause to him. He properly restricted the examination. (See generally, 2 Edw. Ch. 1, 293; 1 Hoffm. Ch. 294; 7 Johns. Ch. 69 ; 3 Harr. & Johns. 43; 3 Ired. Eq. 58; 1 Daniel. Ch. Prac. 724 ; 2 id. 762-5; 1 Sto. Eq. § 525.) The complainant could prove no errors he had not charged. There was no error in refusing to receive in evidence the balance sheets made by Pagaud. They were not in evidence before Cai'rol, the former commissioner. They were not made out until three months after the testimony before Carroll closed. They were not made out from the original books of the partners, but from the books made by Liggett. They were not supported by proper testimony. Pagaud was not sworn as a witness. Ligget’s copies of the original books were very defective and incorrect.
   RichaRdson, Judge,

delivered the opinion of the court.

The general history of this controversy to the time that the defendant filed his answer to the complainant’s amended bill may be seen in the report of the case in 21 Mo. 60, 62.

The answer to the original bill set up as a defence that an account of the affairs of the first partnership had been stated and settled; and, on a hearing of the cause, the court found the issue for the defendant. The effect of that interlocutory decree, which we are not called on to review, was to drive the complainant to file an amended bill, in which it was necessary to point out specifie errors in the account. When the case was last here, it was remanded with directions to refer back the account stated to a commissioner, with instructions to examine the same as to errors and omissions, and with leave to the complainant to surcharge and falsify the same on the basis of the settlement as found by the court.” And the first question to be decided is whether the decretal order referring the cause to the commissioner was properly made and in conformity to the opinion of this court.

It is stated in Daniel’s Treatise on Chancery Practice that when a settlement of account is shown to have’been procured by fraud, it is a sufficient ground to open the whole account, and the parties will not be in any manner bound by it; but when errors or omissions only are shown to exist, the account will not be opened, and the party will be permitted merely to surcharge and falsify it. The court takes it as a ' stated account, and the party seeking to open it must specify the errors he relies upon. It is not however necessary for him to prove all the errors named in the bill, for he will be entitled to a decree giving him liberty to surcharge and falsify if he proves some of them; and if he can show an omission for which there ought to be a credit, it will be added, (which is a surcharge,) and if any improper charge is inserted, it will be deducted (which is a falsification). (2 Daniel Ch. Pr. 189,190.) Judge Story says that, when it is shown the parties have already adjusted an account, the court will adopt, according to circumstances, one of three courses. 1. In case of gross fraud or gross mistake, or undue advantage or imposition, the whole account will be opened and ordered to be taken de novo. 2. When the mistake or omission or inaccuracy or fraud or imposition is not shown to stain or affect all the items of the transaction, the court will allow the account to stand, with liberty to the complainant to surcharge and falsify it; the effect of which is to leave the account in full force as a stated account, except so far as it can be impugned by the opposing party, who assumes the burden of proof to establish errors or mistakes. 3. Sometimes, a still more moderate course is adopted, and the account is simply opened to contestation as to one or more items which are specially set forth in the bill of the plaintiff as being erroneous or unjustifiable, and in all other respects it is treated as conclusive. (1 Story Eq. § 523.)

The interlocutory decree, to which the complainant excepted, ordered that the account settled and stated on the 25th of January, 1844, of the first partnership should stand, with liberty to either party to surcharge and falsify it, and that the account should be referred to the commissioner with instructions to examine the same as to errors and omissions on the footing of said account stated, and to state the balance of account and interest due to either party from the pleadings and evidence then in the cause, and such further competent evidence as either party might produce before him. This decree, we think, was in conformity to the remanding order of this court, was adapted to the nature of the bill, and is of the character suggested by Judge Story in his third classification.

It appears that the commissioner examined every specification of error stated in the bill and found that there was nothing to invalidate the integrity or correctness of the account; and, in our opinion, he properly construed the decree in ruling that the examination should be confined to such errors and omissions as were specifically charged, and that the account should stand unless one or more of the specific errors or omissions charged in the bill were established by proof.

The balance sheets made out by Pagaud were properly rejected as evidence. They were not made from the original books of the parties, but from those transcribed by Liggett, which were shown to be inaccurate in many respects. Pagaud was never sworn in the cause, and they amounted to nothing more than the private papers or written statements of a third person. In Turner v. Hughes, Busby’s Eq. Rep. 116, the person who furnished the abstracts of the books was the agent of both parties appointed for that purpose, and the examination of the books was made by him in the presence of the parties; but in this case the abstracts were taken from data which the defendant repudiated, and they were not drawn off in the presence of the parties, nor even under the eye of Mr. Carroll, the former commissioner.

The exception to the final decree that the bill was dismissed without taking an account of the business of the last partnership was properly overruled. The allegations.in respect of the second partnership was that the errors and admissions in the account of the first partnership were carried into the new concern; but as the decree established that there was no error in the account of the first partnership, it would seem that there was no reason for examining into the accounts of the second partnership. Furthermore, it does not appear that the complainant, either before the court or the commissioner, offered any proof touching the accounts or business of the second partnership; and it may be fairly inferred from his silence on the final hearing, as he did in express terms on a former hearing, that he abandoned any claim to inquire into the affairs or accounts of the second partnership. The other judges concurring, the judgment will be affirmed.