text:
    Goodfellow, Respondent, v. Noble, Appellant.
    1. It is no defence to a suit for the recovery of rent, that the defendant had entered into the occupancy of the premises under an agreement -with the plaintiff that he (the plaintiff) would execute alease therefor for the term of three years, and would make certain repairs, the making of the repairs not being a condition of the leasing, and that the plaintiff neglecting and refusing to do the same, he (defendant) repudiated the contract and abandoned the premises.

      Appeal from, St. Louis Land Court.

    Gibson, for appellant.
    I. Where one enters into the possession of land under an agreement with the landlord that be will execute a lease for three years, and the landlord after the entry refuses to comply with his contract, this is a frartd that authorizes a repudiation of the contract in toto.

      Cline 8f Jamison, for respondent.
   Rvland, Judge,

delivered the opinion of the court.

This was an action before a justice of the peace for seventy-five dollars for three months’ rent of a dwelling rented by defendant of plaintiff in the city of- St. Louis. The plaintiff recovered judgment, and the defendant appealed to the Land Court. Upon the trial in the Land Court the plaintiff made out a prima facie case. The record has the following entry: “ On the trial the plaintiff gave evidence prima facie proving his case.” The defendant then offered to prove “ that he entered into the premises under an agreement with the plaintiff that plaintiff would execute to him a lease therefor for three years, and to do certain repairs thereon, all of which he neglected and refused to do, and thereupon and therefor the defendant repudiated the contract, and abandoned the premises before the 15th day of August last, and gave notice thereof to plaintiff; but the doing of the repairs was not a condition of the leasing.” The court excluded this evidence,; the defendant, excepted, and brings the case here by appeal. The exclusion of this evidence is the only point in the case.

In the opinion of this court, the evidence was properly excluded. The defendant offered to prove that he entered, into the premises under an agreement that he should have, a lease therefor for three years. What does the proof amount to ? Is it any thing more than a parol lease for three years ? -Ur/ der the statute of frauds what is the effect of s.uch a lease ? It is to create a tenancy from year to year. In this case then the defendant, under his own proof, as offered, would', be liable to one year’s rent, unless he surrendered the. premises to plaintiff and they were accepted by him, and the, contract, between them put an end to. But surely the defendant:, under such an agreement, can not enter and afterwards abandon the premises at will, and escape liability for rent. (Kerr v. Clark, 19 Mo. 132.) Let the judgment be affirmed;

Judge Scott concurring.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Fremon, Defendant in Error, v. City of Carondelet, Plaintiff in Error.
    1. A writ of error will lie dismissed for the reason that it is left blank as to the names of the parties to the suit.
    2. No amendment of such writ can he allowed in the Supreme Court.

      Error to St. Louis Land Court.

      Casselberry? for plaintiff in error.
    Leber, for defendant in error'.
   Scott, Judge,

delivered the opinion of the cotfrt.

£his case stands on a Motion to dismiss the the writ of ..error lox the reason that the Writ does not show in what cause it issued, and no parties, plaintiffs or defendants, are named therein. 'The error is apparent, and the plaintiff in error moved .to -amend the writ.

Amendments are liberally allowed in affirmance of judgments, but ,tbis last motion by an amendment would pave the way for a ¡reversal of a judgment. There is no warrant for this at common law, nor by any of our statutes on the subject of amendment. Tidd (p. 1094) says: “ Great certainty was formerly required in making the writ of error agree with the record, for, as the writ was the sole authority by which the judges were empowered to act, they could proceed only on that record which the writ or commission authorized •them to examine. Nor could any defects therein he amended before the statute of 5 Geo. I. c. 13, because by the former .statutes of amendment tbe judges were only enabled to amend in affirmance of the judgment.” In looking into our legislation on tbis subject, we find that the statute of Geo. I. was adopted into tlie code of 1825. (R. C. 1825, p. 130, 131.) In subsequent revisions this act has been omitted, and thus we are left without a statute on the subject. Under these circumstances we do not conceive that we would be warranted in allowing the amendment. We can find no authority for such an act either by the common law or by statute. Writ dismissed;

Judge Ryland concurring; Judge Leonard absent.


author: Leonaed-, Judge,

text:
    Charpiot, Respondent, v. Sigerson, Appellant.

    1. The possession that will he deemed such a part performance of a parol contract for the sale of land as will taire the case out of the statute of frauds is an actual possession taken by the vendee under the contract, with the consent of the vendor, and with a view to the performance of the contract, and not the constructive possession which the law imputes to the owner when there is no actual adverse possession in a stranger.
    2. In order to take a case out of the statute of frauds on the ground of a part performance of a parol contract for the sale of land, the acts relied on should be definite and referable exclusively to the contract, and the contract itself should be fully established in all its essential terms.

      Appeal from St. Louis Land Court.

    This was an action to enforce specific performance of a contract of sale of land. Issues were framed and submitted to a jury, and the following, among other instructions, was given to the jury: “ 1. Possession of the land in question, as mentioned in the pleadings, may be either actual or constructive. Actual possession needs no explanation; it may be seen there for itself. It may be with or without inclosures, buildings or cultivation. Constructive possession is different ; as where a man has title to land, though it be wild and untenanted, if no person have actual, adverse possession, the law imputes the possession to the rightful owner. Also where a man has good title to land (no other person being in adverse possession) and exercises over it such acts of ownership as men do ordinarily exercise over their wild and untenanted lands, the law regards such acts of ownership as good evidence of possession on the part of the claimant.”
    The jury found “that the contract, as stated in the petition, was made verbally and confirmed in writing; that defendant had notice of such contract before the making of the deed from James Sigerson [the vendor] to John Sigerson, the defendant ; that James Sigerson did surrender the ground in dispute to the plaintiff, and the plaintiff did take and keep possession thereof as stated in the petition.” The court rendered a decree for plaintiff.

      W. L. Williams, for appellant.

      A. J. P. Garesché and Primm, for respondent.

       This cause was decided at the October term, 1856. A motion for a rehearing was filed and continued to the March term, 1857. The motion was overruled.

   Leonaed-, Judge,

delivered the opinion of the court.

We reverse this judgment on account of the instruction in reference to possession. In applying the equity of specific performance to real estate, there is a modification of a rule of statute law, which at first sight appears inconsistent with it, and repugnant to the maxim that “ equity follows the law.” The modification to which we refer is that of enforcing parol, contracts relating to land on the ground that they have been already performed in part. The wisdom of allowing this deviation from the written law has been much doubted, but the doctrine is too firmly established by precedent, wherever English equity law prevails, to be now called in question. The- only difficulty is in determining what shall be considered part performance. At one time the payment of the purchase money, or even of a part of it, was considered such; but that doctrine, after being the subject of a good deal of discussion, has, it is believed, been finally overthrown.

The principle of part performance is said to be that, if one of the contracting parties induced the other so to act that if the contract be abandoned he can not be restored to his former position, the contract must be considered as perfected in equity, and a refusal to complete it at law is in the nature of a fraud. Such would be the case where, upon a parol agreement for the purchase of land, the vendee, not being otherwise entitled to the possession, is admitted into it by the seller ; for if in such case the contract be invalid, he is made a trespasser, and is liable to answer as such at law; and the equity is stronger, if, after being let into the possession, he is allowed to lay out his money in improvements upon the land. In order however to render the change of possession a sufficient part performance, it is essential that it should have been made with a view to the agreement being performed. Hence, if the change of possession was independent of the contract, or was obtained wrongfully by the vendee, or even without the consent of the vendor, it is not a ’part performance.

Supposing the parol contract to have been established by the proof, the turning point in that case was, whether there had been such a change of the possession as would take the contract out of the statute of frauds; and the court directed the jury that this possession, such as would be sufficient for this purpose (for that was the possession about which the issue was made), might be either actual or constructive, and that constructive possession was that which the law imputed to the owner, when there was no actual adverse possession in another. This is an obvious error. The possession that will foe deemed a part performance of a parol contract is an actual possession, taken by the vendee under the contract, with the consent of the vendor, and with a view to the performance of the agreement, and not the;fictitious possession which the law imputes to the legal ownership when there is no actual adverse possession in a stranger, and which passes from one to the other upon every transfer of the legal title. Indeed the only definition given by the court of constructive possession utterly excludes the idea that the plaintiff had such a possession of the land in controversy; yet the instruction may have misled the jury, and as it relates to a material point in the case, we can not treat it as a harmless, although incorrect, ruling of the law.

It was argued before us that there was not sufficient evidence of the contract in all its terms to submit that question' to the jury. The judgment being reversed for the error in the instructions, there will be a new trial of all the issues, and we therefore refrain from expressing any opinion in reference to the sufficiency of the evidence ^but will take occasion to remark, that, in order to take a case out of the statute of frauds on the ground of part performance of a parol contract, the acts relied upon for this purpose should be definite and referable exclusively to the contract, and the contract itself should be fully established in all its essential terms. It is said that in former times judges felt themselves at liberty to'.-depart from this reasonable course of adjudication, and granted relief notwithstanding the uncertainty as to the terms of the contract. This latitude of jurisdiction however is not warranted by any sound principle, and has been expressly renounced in more recent times. The judgment is reversed, and the cause-remanded.


text:
    Pfeiffer, Plaintiff in Error v. Kingsland et al., Defendants in Error.
    1. An agreement guarantying tlie performance of a contract previously entered into with another, though in writing, must have a consideration to he valid and binding.

      Error to St. Louis Court of Common Pleas.

    This was an action upon the following guaranty, bearing date October 27,1832 : “ "We agree to guaranty that Mr. M. Drummond will do all that he says he will do in building machinery for a two horse grist-mill for Mr. Pfeiffer. [Signed] Kingsland & Cuddy.” Drummond had agreed, August 4, 1852, to build and finish for Pfeiffer the machinery for a two horse grist-mill. The plaintiff failing to show any consideration for said guaranty moving between himself and defendants, the court excluded evidence tending to show a breach of the original contract on the part of Drummond. The court instructed the jury that upon the evidence the plaintiff could not recover; whereupon plaintiff took a non-suit, with leave to move to set the same aside.
    Kribben, for plaintiff in error.
    I. The defendants do not set up a want of consideration in their answer, but defend upon the main merits of the case. (See generally 8 Johns. 29; 1 Parsons on Cont. 496 ; 2 Hall, 474; 17 Johns. 113; 2 McLean, 103; 5 Bingh. 113; Roberts on Frauds, 117; 2 Co. Rep. 2 Atk. 560 ; 1 Chitty PL 71; 2 Bingh. 464 ; 1 McLel. & You. 205.)

      Hitchcock and Gibson, for defendants in error.
   Scott, Judge,

delivered the opinion of the court.

A sufficient consideration, or recompense, or motive, or inducement, to make the promise upon which a party is charged is of the essence of a contract not under seal except in cases where the statute law has introduced a different rule. A promise by a party, even in writing, to pay a debt already incurred by a third person • is not available if there be no new consideration. An undertaking to answer for the debt of another, though in writing, is void if no consideration move between the plaintiff and defendant, either of forbearance or otherwise. A guaranty of a note, like any other promise, without a consideration, is void. But if the undertaking is eotemporaneous with the creation of the original debt, the guarantor |g presumed to participate in the original consideration. (Leonard v. Vredenberg, 8 Johns. 29.) It is entered of record “ that it is agreed that Drummond proved that no consideration passed between plaintiff and defendants for the guaranty sued on.” The guaranty was not made until fhe time of performing the act guarantied was about to expire, long after the original contract had been made. There is no evidence showing that after the date of the guaranty the plaintiff paid any money to Drummond on the faith of it; had such been the fact the case might have been different. It appears that all the money Drummond received was paid to him before the date of the guaranty. If any money was due Drummond he had a remedy in his power for any breach of contract on the part of Drummond.

Judge Ryland concurring,

the judgment will be affirmed;

Judge Leonard absent.


text:
    Kruse, Appellant, v. Kruse, Respondent.
    1. The complainant in an action for divorce must he a resident of this state, otherwise the petition may he properly dismissed.

      Appeal from St. Louis Circuit Court.

    This was an action for a divorce brought by the wife against the husband for wilful desertion and absence without reasonable cause for two years. The plaintiff proved, as appeared from the bill of exceptions, “ that she was married to the defendant, in the county of St. Louis, on the 15th day of October, 1852; that, after living together a few months in said county, the defendant left the plaintiff, without any cause therefor being made to appear, and went to California, and has since done nothing for her support or maintenance, nor had he since been heard from, except as one of the witnesses stated he had heard in 1855 that he had returned to this state, but that he had not seen him; that on being thus left the plaintiff took up her residence with her father, who has since supported her; that after having thus lived with her father some fifteen or sixteen months, she with her father removed to Kentucky, where she has ever since resided with her father.”
    Upon the foregoing facts the court dismissed the petition on the ground, 1st, that the plaintiff had not resided in the state of Missouri for one whole year next before the filing of her petition ; 2d, that she had ceased to reside in this state before the alleged desertion had existed for the space of two years.

      Enm Sf Handing, for appellant.
    I. The appellant did not lose her residence in this state by going with her father to Kentucky. No intention to abandon her residence can be inferred from the evidence. (5 Yerg. 208.)
    II. Even if she had lost her residence here, the fourth section of the act of 1845, concerning divorce and alimony, (R. C. 1845, p. 427,) gave her the right to sue, because the “ offence complained of was committed within this state.” Under this point the appellant contends,. 1st, that desertion is a complete act at the instant when the husband or wife first leaves the deserted party with the intention to abandon and not return to him or her; 2d, that the period of two years, named in the statute, is not fixed as determining what desertion is, but is simply a prohibition to the injured party to sue until the desertion has continued during that time; 3d, that the manifest reason for requiring the delay is to afford the guilty party a locus penitentice, and to prevent action by the injured party until all reasonable probability of condonation has passed; 4th, in this particular case more than three years had elapsed between the time of desertion and the time of the filing of the plaintiff’s petition; 5th, the statute does not require that the injured party should reside here during the term of two years referred to, in order to make his or her cause of action complete; 6th, the offence or injury was committed in this state, if at all.
   Scott, Judge,

delivered the opinion of the court.

This was a petition for a divorce instituted in the St. Louis Circuit Court on account of desertion and absence. Although the plaintiff may have been married in this state, yet that circumstance of itself does not entitle her to sue in our courts for a divorce. It appears from the evidence in the cause that the plaintiff was a non-resident of this state when she instituted this suit, and that she continued so up to the time of the trial of the cause. The second section of the act concerning divorce and alimony, (R. C. 1845,) under which this proceeding was begun, clearly shows that the plaintiff must be a resident of this state.

Judge Ryland concurring,

the judgment will be affirmed;

Judge Leonard absent.


author: Etland, Judge,

text:
    Beck, by Guardian, Defendant in Error, v. Metz & Wife, Plaintiffs in Error.
    1. A -will, after a devise to the wife of the testator of all his property, contained tlie following clause: “ In every other respect I leave it entirely to the will and judgment of my said wife Catherine, how and in what manner she thinks proper to dispose of the estate, as well with reference to our child or children as with reference to the said Joseph Frederick Beck.” The testator left one child him surviving. IIeld, such child was named in said will within section 11 of the act concerning wills; (B. C. 1815, p. 1080;) that consequently the testator did not die intestate as to such child.

      Error to St. Louis Land Court.

      Kribben, for plaintiff in error.

      Whittelsey, for defendant in error.
    I. The second clause of the will gave to the wife the absolute estate, “ to her and her heirs and assigns forever.” The fourth clause gave her the same estate, for it gave her the absolute power over the estate. A devise with power to pass a fee passes a fee. (Doe d. v. Hendland, 8 Cow. 277.) “ My estate to be at her absolute disposal” passes a fee. (Jackson v. Babcock, 12 Johns. 389.) The power of appointment did not limit the fee. (3 Ed. Ch. R. 207.) Without the fourth clause naming his daughter, the will would have been inofficious under the statute ; but as he has named her, and still gave his wife the estate, the will is valid, and the wife took all the estate. (Guitar v. Gordon, 17 Mo. 408 ; Tucker V, Boston, 18 Pick. 167 ; Terry v. Poster, 1 Mas§. 166 ; WÜ» der y. Goss, 14 Mass. 357; Wilson, v. Tasket, 6 Mete. 600; Block y. Block, 3 Mo. 594.) These authorities show that the statute applies only to unintentional omissions of the testator to provide for his children.
   Etland, Judge,

delivered the opinion of the court.

Frederick L. Jesser died seized of certain real estate in St. Louis city. By his last will, and testament he devised to his wife Catherine his estate, using the following language: “ Second, I hereby grant, give, and bequeath to my wife Catherine, all and singular, my property and estate, real, personal and mixed, including all I possess at present, and whatsoever I may become possessed of or acquire hereafter: to-have and to hold the same unto her, my said wife Catherine, and to her heirs, administrators and assigns, forever, free from, all claims and to the exclusion of all persons whatsoever.”' The fourth clause of said will is as follows: “In every other respect I leave it entirely to the will and judgment of my said wife Catherine how and in what manner she thinks proper to dispose of the estate, as well with reference to our own child or children as with reference to the said Joseph Frederick Beck.” His wife Catherine was left sole executrix of the will. Louisa P. Metz, the wife of Frederick Metz, was the sole child of Jesser by his wife Catherine. Catherine Jesser died intestate, leaving as her heirs the plaintiff Joseph Frederick Beck, her son by a former husband, and the said Louisa P. Metz, her daughter by said Jesser.

The question here arises alone upon the construction of these two clauses in the will. There can be no doubt that without the fourth clause Jesser would be considered as having died intestate as to his daughter. But the effect of this fourth clause is the point before us. In Bradley et al. v. Bradley et al., decided at Jefferson city, 24 Mo. 371, the doctrine about the failure to mention or proride for children in the testator’s will"was before this court. There the testator said nothing by his will from which this court could infer that he bad a child. We think here the fourth clause mentions his child in sufficient manner to take this will without the lltli section of our statute of wills. (R. C. 1845.) The testator expressly mentions his child — “ as well with reference to our child.” They had but one, the daughter. The wife had one by a former husband; even he is named. Now this mentioning his child and the giving the power to his wife to provide for this child by disposing of the estate according to her own judgment, must be considered within the spirit of our statute, as a naming or providing for his child. He can not be said to have omitted to mention his child. True ho did not name her by her name, but she is sufficiently designated, they having but a daughter. He says, “ our child.” Here she was before him — fully in his mind — called “ our child.” He knew the mother would do her part by her, and to the judgment of the mother he willingly trusted. We refer to the opinion in Bradley v. Bradley, just cited, and consider it not necessary to again cite the authorities therein commented on. Here we see the testator had a child — the will shows this; and whenever the child is designated, or so pointed out by the will that the court can see the testator had the matter fully before his mind, we are inclined to think it will answer. This being the only point, and the court below having considered properly that the will passed the property in fee to the wife, we must affirm the judgment;

Judge Scott concurring; Judge Leonard absent.


text:
    Connor, Appellant, v. Eddy et al., Respondents.
    1. Where a purchaser of land accepts from Ids vendor a conveyance with full warranty of tide, there being no fraud in the sale, and the possession of the purchaser remaining undisturbed, he can not be relieved against the payment of the purchase money on the mere ground of a defect of title.
    2. Where a purchaser of land executes a deed of trust, with warranty of title, to secure to the vendor the payment of the purchase money, he is not estop-ped by his warranty to avail himself of any relief to which he would otherwise ho entitled by virtue of the vendor’s covenants to himself.

      Appeal from St. Louis Land Court.

    The petition in this cause sets forth substantially that plaintiff Connor became the purchaser, at a sale by Joseph A. Eddy and Jabisli B. Eddy, of certain lots in a subdivision of a tract known as the Sarpy arpent; that the said Eddys conveyed the same to plaintiff by deed with general warranty ; that by deed of the same date plaintiff conveyed said lots to Messrs. Belt & Priest (also made defendants herein) in trust to secure the purchase money unpaid, for which he had executed and delivered three several promissory notes ; that in their handbills and publications of sale, and also at the time of sale, the title of the Eddys was declared to be undoubted and perfect; that he, plaintiff, purchased relying upon said representations; that in -these representations gross fraud was practiced upon plaintiff inasmuch as the title of said Eddys is neither undoubted nor perfect; that said Eddys have not a perfect title to more than one-seventh of said land; that the remaining six-sevenths are claimed by one G-ustavus W. Dreyer; that said Dreyer has instituted in this court proceedings to enforce his rights ; the writ issued in said proceedings was served on Jabish E. Eddy, September 23,1854, two days before the day of sale at which plaintiffs purchased; that said writ was served on Joseph A. Eddy, September, 1854, two days after said day of sale, and before the execution of their deed of conveyance to plaintiff; that defendants studiously concealed the knowledge of these facts from plaintiff, that thereby he might be induced to complete his purchase ; that by reason of the notoriety now given to the proceedings of the said Dreyer no confidence is held in the title of said Eddys; that he can not therefore sell or dispose of it, and consequently that it is utterly valueless to him, as it would not be prudent that he should build or improve upon it; that he has demanded a rescission of the contracts, but defendants will not consent; he “ therefore prays for relief, that, having no adequate remedy at law, the contract be rescinded; that defendants surrender to him their notes by him given to them, and refund to Mm the amount of his purchase money, $125, and interest and costs.”
    The court made the following finding of the facts : “ That there had existed difficulties in the title of the Sarpy arpent; that the defendants, Eddys, as owners of the property, on the 25th of September, 1854, sold a number of lots in the Sarpy arpent, at which sale plaintiff purchased the lots as described in the petition; pursuant to the terms of the sale plaintiff paid one-fourth of the purchase money down, and for the balance gave his three notes, all bearing interest from date, and payable respectively at one, two and three years; that plaintiff accepted a deed with full warranties from the defendants, Eddys, and their wives; and he and his wife executed a deed of trust to defendants, Belt & Priest, to secure the notes for the balance of the purchase money, with full covenants of warranty ; that though these deeds were executed afterwards, they both bear date of the sale, viz., September 25th, 1854, and were delivered October 4,1854. The court doth further find that there had been difficulties about the title of the Eddys to the land in question; that in their advertisements and placards Belt & Priest, the auctioneers, (defendants,) by the authority of the Eddys, published the title of the latter to be perfect and undoubted; and furthermore, that at the sale Belt (defendant) published that all the difficulties about the title were now at rest, having been carried to the Supreme Court and adjudicated in favor of the Eddys. And the court doth further find that before the sale suit was brought in this court by Dreyer against the Eddys; that service was had in said suit on Jabish P. Eddy two days before, and on Joseph A. Eddy two days after the day of sale; that no knowledge of this suit was ever given by defendants to plaintiff; that this suit of Dreyer v. Eddy et al. was before the filing of the amended petition in this cause dismissed, plaintiff Dreyer taking a voluntary non-suit. And the court doth further find that the notoriety of the suit by Dreyer and his claim to the title to a portion of the land has impaired the value of the property in dispute by inspiring a general distrust of the title; that by general reputation there were doubts as to the title of said Eddys to said land at the time of the sale arising out of said suit by said Dreyer. No evidence as to the validity of said title was offered by either party. The court further finds that the defendants were not guilty of any fraud in the premises. Upon the foregoing facts, that the defendants are entitled to recover ; judgment accordingly.”

      A. J. P. Garesché, for appellant.
    I. Plaintiff has no adequate remedy at law. The assertions that defendants had “ a perfect and undoubted title,” and that “ the difficulties had been settled by having been carried to the Supreme Court and there adjudicated in favor of the owners,” are untruthful assertions. The concealment of the fact of the institution of suit by Dreyer constituted a fraud upon the plaintiff. He is entitled to a rescission of the sale.

      Krum & Harding, for respondents.
   Scott, Judge,

delivered the opinion of the court.

This case stands for revision here on the finding alone. No failure of title in the vendors is shown by the finding, and it is exprqssly stated that there was no fraud in the defendants in making the sale. Where is the ground then for a rescission of the contract, or for an injunction to restrain the collection of the purchase money ? The facts as found do not bring the case within the influence of the act to regulate injunctions in certain cases. (R. C. 1845, p. 582.) It must stand then on the general principle that a purchaser of land, who has taken a conveyance with covenants for title and is in undisturbed possession, will not be relieved against the payment of the purchase money on the mere ground of defect of title, there being no fraud in the sale nor any eviction. (Abbot v. Allen, 2 Johns. Ch. 519.) Nor is there any allegation of the insolvency of the vendors or of any equitable circumstance, which, according to the case of’Jones v. Stanton, 11 Mo. 433, might induce a departure from the general principle.

The plaintiff, having given a deed of trust on the lot with covenants for title to secure the purchase money to the vendors, is not' estopped by his covenants from availing himself of any relief to which he would otherwise be entitled by virtue of the vendor’s covenants to himself. This is the law with regard to mortgages with warranty of title given to secure the purchase money of the land mortgaged, and it is as applicable, if not more so, to deeds of trust for the same purpose. The law of estoppel has no application in such cases. (Rawle on Qov. 348.)

Judge Ryland concurrring,

the judgment will be affirmed;

Judge Leonard absent.


text:
    Steamboat Virginia, Respondent, v. Kraft et al., Appellants.
    1. The custom or usage authorizing those engaged in the transportation of merchandise to advance to forwarding agents the existing charges thereon, and to hold the consignees and owners liable therefor, does not extend to or cover advances made on demands upon the consignees or owners wholly foreign to, and disconnected with, any cost or charge for transportation.

      Appeal from St. Louis Law Commissioners Court.

    One Whiting, acting as a forwarding merchant in New Orleans, shipped for St. Louis, per the steamboat Virginia, five cases of scythes. When said goods were received on board of said steamboat, the said Whiting demanded and the cleric of said steamboat paid to said Whiting the sum of $153 42. Said sum was entered as “ charges” in the bill of lading. Of said sum of $153 42, a portion — $147 92 — formed no part of the charges paid by or due Whiting on account of the said merchandise shipped on the Virginia; it was a charge made by Whiting on account of former advances, travelling expenses, lawyer’s charges for collecting, &c. The merchandise shipped by said Whiting as forwarding agent was delivered to E. E. Kraft & Co., the owners thereof, at St. Louis, who refused to pay to said steamboat the said item of $147 92, alleging that they were not liable therefor, but admitting their liability to the extent of the remaining advances. This suit was brought in behalf of said steamboat to recover said sum of $153 42.
    The eourt, at the instance of the plaintiff, gave the following instructions: “ 1. The custom or usage of a particular trade fixes the liability of parties, unless there is an agreement to waive the ordinary custom or usage of the trade in which the contract is made. 2. If the jury believe from the: evidence that it is customary for boats running between New Orleans and St. Louis to receive goods in New Orleans and pay charges thereon without knowing the consideration for these charges, and that the plaintiff in this case received the defendants’ goods in New Orleans and paid to the defendants’ agent there the sum of $153 42 as charges on the same, without knowing what those charges were for, then they are entitled to recover the amount paid, although the jury may believe that the whole amount of said charges were not properly chargeable on that particular lot of goods for previous freight, or the ordinary charges incurred in the transportation of the same. 3. The acts of the defendants’ agent in New Orleans are binding upon them, and they are liable for money received by him for and on their account, notwithstanding the same may have been improperly charged by the. said agent, unless the plaintiff knew the charges were improper, and the burden of proving that fact lies on the defendants. 4. The defendants had their choice to receive or to refuse to receive the goods on tlieir arrival here; but by receiving the goods without any objection to the charges on the- same, they admitted their liability, and are now bound to pay the full amount of said charges, whether the same were properly charged or not by their agent in New Orleans, unless the jury find from the evidence that the plaintiffs knew before they paid said charges that they were improper, and< were not the ordinary and usual charges incurred in the. transportation of the goods in question. 5. If the jury believe that Abijah Whiting was the shipping agent of the defendants in New Orleans, and that acting in that capacity for the defendants he procured the said plaintiff to pay the sum of $153 42 as charges on the goods of the said defendants, and that the said defendants received the goods knowing that said charge had been paid by the plaintiff, then they are liable therefor, and the jury will find for the plaintiff.”
    The court refused to give the following instructions asked by defendants: “1. The jury are instructed that the plaintiff is entitled to recover in this action of defendants only such sums as they find were paid out on account of freight and charges on the said five cases of scythes named in the bill of lading. 2. If the jury believe that the sum of $147 92, or any other sum paid by plaintiff to Whiting, was collected by said Whiting on account of other transactions than those connected with the shipment and charges on said scythes, then they will not find for plaintiff for such amount.”
    The jury returned a verdict for plaintiff for the whole amount sued for.

      Biddlecome, for appellant.
    I. Whiting was in no sense the agent of the defendants either by delegated power or from authority incidental to the particular business or employment in which he was employed. He was only a forwarding merchant, and had no right to collect of the carrier of the goods any other moneys than such as he had paid out upon, and might properly charge for his services in connection with the particular goods forwarded. The payment by the officers of the plaintiff to Whiting was voluntary, and without authority and without consideration to the defendants, except as to the sums advanced, and forwarding charges upon the goods consigned. The receiving of the goods by the defendants did not subject them to the payment of any other sums than such as were incident to the transportation of the goods. The lien of the earner on goods does not extend beyond his own freight and that which he has advanced for former charges and costs of transportation on the same. He may be subrogated to the rights of the forwarding merchant or shipper in the lien which he had, but can pbtain no rights against the goods beyond that. The custom attempted to be shown creates no liability against defendant.

      A. M. Gardner, for respondent.
    I. The money was paid innocently by plaintiff to defendants’ agent, and if he had no right to receive the same, defendants and not plaintiff should suffer the loss. (Story on Agency, § 442,451.) As agent, consignor or forwarding merchant for defendants, Whiting was authorized to make the contract contained in the bill of lading, and by which defendants are now bound. (Edwards on Bail. 499.) The plaintiff followed the custom of the trade in paying the charges specified in the bill of lading without inquiring as to the consideration therefor. (Ruggles v. Washington Co. 8 Mo. 348 ; Edwards on Bailment, 510.) The charges were paid to the forwarding merchant having the goods in possession, for the purpose of making freight for the vessel, according to the usage of the trade, and should be refunded. (Flanders on Maritime Law, 180.)
   Scott, Judge,

delivered the opinion of the court.

In the case of White v. Vann, 6 Humph. 73, the court said it was “ proved by several enlightened merchants and well-informed owners of steamboats, that it is the long and well established custom and usage of trade, not only on the Tennessee river, but throughout the United States, for freighters of goods to advance to the forwarding agents the existing charges upon them, which the consignees and owners are liar-ble to refund; that this usage is indispensable to the successful prosecution of commercial operations, and of great and mutual advantage to all parties.” We have copied the above extract as showing the usage, because upon examination we have not been enabled to find much, if any thing, in relation to it. The advantages resulting from this usage are so obvious that -it must commend itself to every one; and we should regret to see it a stranger to our courts. But advantageous as this usage is shown to be, we do not know, nor can we conceive any thing that would more effectually render it odious than such an extension of it as would make it cover advances for claims or demands on the owner or consignees wholly foreign to and disconnected with any cost or charge for transportation. If this were tolerated, not only the forwarding agent, but every one who would collude with him, might obtain payment of demands, whose justice the owners or consignees refused to recognize. It would be the introduction of a novel mode for the collection of debts where payment had been denied on the ground of their invalidity, and a means of compelling the owner to submit to unjust ex-actions or to refuse him his goods.

As the debt paid by the plaintiff through her agent was in nowise incurred by, nor in any way connected with, the transportation of the merchandise, she could not by such voluntary payment, unsupported by any usage, make herself a creditor of the defendant. Nor can the officers of the plaintiff, by any custom or usage, protect her from the consequences of their neglect in not ascertaining whether their advances were the costs of transportation. Would they advance any amount, however enormous, and expect to save her from loss by a usage which did not require them to ascertain the validity of the charges ? A custom to encourage negligence at the expense of others would scarcely be tolerated by the law. Being familiar in the business of transporting merchandise, if the items of the charges were produced and examined, the agent could see at once whether they were usual and proper.

The principle that, where one of two innocent persons must suffer by the act of a third, he should bear the loss who has placed it in the power of the third person to do the injury, has no application here. The plaintiff is not an innocent party. Her agents were guilty of gross negligence in not informing themselves of the nature of the charges for which they made an advance. There is no pretence in the circumstances of the case to warrant the instruction to the effect that the defendants, by receiving the goods, acknowledged the justice of the charges, and were liable to pay them, unless the plaintiff, when she advanced them through her agent, knew that they were not the ordinary and usual charges incurred in the transportation and shipment of goods.

As the charge was illegal and unjust; as there was no evidence that the defendants were aware of its nature when they received the goods ; as they objected to it so soon as it was known; and as they could not contemplate that an improper charge would be made against them, there is no foundation for the presumption that they acquiesced in or acknowledged the justice of the plaintiff’s demand. The defendants, upon tendering the legal advances, would have been entitled to the possession of their, goods, and might by an action have compelled their delivery. As they have them lawfully without suit, there is no reason why they should be placed in a worse situation than if they had obtained them by suit. The other judges concurring, the judgment will be reversed, and the cause remanded.


author: RtláND, Judge,

text:
    Wesson et al., Respondents, v. Horner et al., Appellants.
    1. To constitute an enforceable contract it must bo founded on a valuable consideration, and be certain and definite in its terms.

      Appeal from St. Louis Court of Common Pleas.

    This was a suit by attachment founded on a promissory note. The answer admitted the execution of the note, but alleged by way of defence, in substance, that the plaintiffs and defendants, and divers other creditors of defendants, consulted together in relation to the indebtedness of the defendants to the plaintiffs and the other creditors ; that it was understood and agreed between the defendants and those other creditors that they would forbear and give time to defendants to pay the several debts owing to them, and would sell them goods to enable them to prosecute their trade and business as merchants, provided the plaintiffs would not annoy, harass and' disturb them, or in any way prevent them from so doing; that the plaintiffs agreed that if said creditors would sell goods to defendants, they would not sue, attach, or in any other way detain or harass them in prosecuting their business as merchants; that divers of these other creditors did sell defendants goods on credit to the amount §8000, the sales being based on said agreement, and with the understanding that the plaintiffs would not sue, or in any way harass the defendants; that this suit was in violation of the agreement. Defendants pray that proceedings may be restrained until a reasonable time has elapsed to enable them to dispose of said goods.
    A motion was made and sustained for judgment as for want of an answer.

      Hudson & Thomas, for appellants.

      N. Holmes, for respondents.
    I. No agreement is stated in the answer with such certainty as to be capable of being interpreted and enforced against the plaintiffs. It does not definitely appear between what parties the several supposed agreements were made, nor on what considerations, nor from and to whom moving, nor when to be performed. So far as the plaintiffs are concerned the agreement stated is nudum pactum, and void for want of any valuable consideration. A moral consideration is not sufficient. Forbearance to sue for a reasonable time may be a valuable consideration for a promise, but here defendants do not promise any thing whatever for the benefit of the plaintiffs, nor is the agreement to forbear, here stated, for any particular time, nor for a reasonable time, but is wholly indefinite.
   RtláND, Judge,

delivered the opinion of the court.

The agreement set up in the defendants’ answer amounts to no defence to the plaintiffs’ action. There is not the slightest consideration set forth or mentioned moving to plaintiffs for any such promise or agreement; it is a mere nudum pactum. The agreement is uncertain and entirely too indefinite even if there was a consideration to support it. The defendants do not promise to do any thing for the plaintiffs’ benefit. It seems to us tó be a mere sliam answer. There is no defence to plaintiffs’ action set forth in the answer. The promise, if any was made, seems by the manner of stating it to have been made, not to defendants, but to the other creditors of the defendants. There is nothing in this case. The judgment must be affirmed; the other judges concurring.


author: Hyland, Judge,

text:
    Meyer, Respondent, v. Witter, Appellant.
    1. To make the contents of a document — a periodical publication — in a foreign language evidence, it must be translated, and be brought home to the party against whom it is sought to be used.

      Appeal from St. Louis Court of Common Pleas.

      S. A. Holmes, for appellant.
    I. Under the issues and the instructions of the court below, the allowance of the defendant’s offset depended upon the proof of the fact of partnership between the plaintiff and Bibliographic Institute of Hildburgliausen, and it was therefore error in the court to exclude any evidence tending to prove that fact. The identity of the publication was established by the testimony of Schuster, and there being evidence offered by the defendant tending to show that Meyer was one of the publishers, the translation from the prospectus ought to have gone to the jury for what it was worth. They were the proper judges as to whether Meyer was the publisher or not.
    II. The point taken by the respondent, that the publication called the “ Leuchtkugeln” was in the German language, is not well taken. The defendant did not offer the contents bnt the thing in evidence.
    III. That part of the contents of this book, consisting of the prospectus, which was offered in evidence by the defendant, was properly translated and the translation proven. Where a party offers a book in evidence, he is not obliged to read the whole of it. The plaintiff might have called for a translation of the remainder had he himself desired to read it in evidence.
    IV. It is objected that there is no evidence that the “ Leuchtkugeln” offered by the defendant ever came from Meyer. There was evidence tending to show that Meyer was the publisher of this work, and that Witter was his agent and factor for the sale of it; that consignments of the work, with prospectus, had been made to him. Under these circumstances, it would seem to be enough that the defendant produced from his possession a copy of the work and identified it as genuine.

      Hill, Grover 8f Hill, for respondent.
   Hyland, Judge,

delivered the opinion of the court.

This was an action brought by Meyer to recover of defendant Witter the sum of seven hundred and sixty-four dollars and thirty-two cents, alleged to be due from Witter to plaintiff, on account of goods, wares and merchandise sold and delivered by plaintiff to Witter at his request. A particular statement of the account is filed with the petition, showing debits, and credited with the amount of 11806 43. The debts amounted to $2570 75 — leaving a balance due to plaintiff of the sum of $764 32.

The answer of Witter denies all indebtedness ; and he also pleaded a set-off due to him by a firm of which he alleges the plaintiff is a member. The set-off amounted to $827 89. Defendant admits the correctness of a part of plaintiff’s debt, amounting to $684 47; leaving a balance of $143 42 due from plaintiff to defendant. The plaintiff proved his case by a witness who stated that the defendant in his presence admitted the account shown to him by plaintiff containing all of the items as set forth in the account filed, and also the amount of credits, leaving the balance as stated in the petition ; and that defendant promised to call at the plaintiffs store and pay it, or arrange it before he left the city of New York. The witness proved that the amount of 1764 40 was distinctly admitted as the difference between the plaintiff’s and defendant’s accounts; and it was distinctly agreed at the time that that was the actual amount due from defendant to plaintiff. It was also proved that the plaintiff was not a member of the “ Bibliographic Institute” — the firm that defendant in his set-off claimed to be debtor to him — and that plaintiff was a partner thereof; and also proved that the Bibliographic Institute never had any connection with the house or business of the plaintiff, except that plaintiff bought books of the Institute as other book-sellers buy, and occasionally attended to a few small matters of business for the Institute in New York by way of convenience and good feeling ; that plaintiff’s house never was a branch of the Institute.

The defendant gave much testimony for the purpose of establishing the issues set up in his answer, and all the evidence offered by him was admitted except the copy of the “ Leucht-kugeln,” and a partial translation thereof. A witness for defendant testified that he knew the publisher, and had heard it was published by a man named Roller, in Munich; but did not know of his own knowledge by whom it was published. Defendant then offered to read in evidence a translation of the first page of said publication, which was as follows:

“Leuchtkugeln. Yol. 8 — No. 1. Address of the new editors. £ To meet again’ was the last word on the last sheet of this journal, and the last hope of its brave founder. The latter has been promptly fulfilled. The £ Leuchtkugeln,’ transferred to our publishership, continue to shine. Under the shield of our firm the journal obtains liomeright and the largest circulation in both the hemispheres, and by it security of its subsistence. May tlie ‘ Leuclitkugeln’ at tlieir continued publication be received everywhere by the people with the greeting of welcome.

“ Hildburghausen: Bibliographic Institute. New York : Herman J. Meyer.”

The publication thus offered and excluded is a magazine in the German language, mutilated and without date. No evidence was offered by defendant tending to show where it came from, or how the defendant became possessed of it. The evidence before offered showed that plaintiff had sent to the defendant for sale works of that name, “Leuclitkugeln,” and had charged them in his account in 1852 ; but there was no proof tending to connect plaintiff with this particular paper or document. The only question before us is as to the rejection of this German paper and the translation of a part of it as evidence. In our opinion, the document was properly rejected; there is nothing connecting the plaintiff with this document; no proof that he had ever before seen it, or had any thing to do with it. The document is mutilated and without date. It was not translated, and if the object was to make the contents evidence to the jury, it must be translated. If it be the object only to show the paper itself — the document without any reference to its contents — it is not competent for that purpose without previously by other testimony bringing it home to the plaintiff, and in some way connecting him with it. This was not done in this case. We therefore conclude that the court properly rejected the document when offered in evidence. This action of the court is the only matter complained of here. We therefore affirm the judgment; the other judges concurring.


text:
    Keating, Respondent, v. Bradford, Appellant.
    1. It can not be assigned for error that a new trial was improperly granted.
    2. The Supreme Court will not interfere with the verdicts of juries on the ground that they are against the weight of evidence.

      Appeal from St. Louis Law Commissioner’s Court.

      Spies Sf Burt, for appellant,
    cited Cummins v. Walan, 4 Blackf. 307; Dense v. Worrell, 1 Hall, 382; Mann v. Clifton, 3 Blackf. 304; Coe y. Given, 1 Blackf. 367 ; Strange, 691; Cooke v. Berry, 1 Wilson, 98 ; Knox v. Work, 2 Binn. 582; Ford v. Eilley, 2 Salk. 653; Alexander v. Byron, 2 Jolins. Cas. 318; Jackson v. Roe, 9 Jolms. 77.

      S. H. Gardner, for respondent.
   Scott, Judge,

delivered the opinion of the court.

One of the errors assigned in this cause is, that the court below improperly granted to the plaintiff a new trial. Ever since the case of Helm v. Bassett, 9 Mo. 51, it has been the established law of this court that a writ of error will not lie for granting a new trial. The reasons of the determination in that case are satisfactory, and we have seen nothing since which would warrant us in disturbing it. It is strictly in accordance with the rules and principles of law; while we consider that a contrary opinion would involve the administration of justice in intricacy and confusion.

Another error complained of is that the verdict was not warranted by the evidence. It can scarcely be necessary to repeat that this court, by a long course of precedents, has refused to interfere with the verdicts of juries on the ground they are against the weight of evidence, after the judge who heard the evidence has sanctioned the verdict by a refusal to grant a new trial. Jurors try the facts and the judges determine the law.

Judge Ryland concurring,

the judgment is affirmed;

Judge Leonard absent.


text:
    Farrell’s Administrator, Plaintiff in Error, v. Brennan’s Administratrix, Defendant in Error.

    1. A failure to mate all the representatives of a deceased plaintiff and a deceased defendant parties to the suit on or before the third term after the suggestion of the deaths, will cause the suit to abate only as to those representatives not brought in and made parties; it is error to order the suit to abate entirely.
    2. Where, upon the decease of a party plaintiff, his administrator is made plaintiff as his representative, without the appearance of the defendant or notice to him, the irregularity will be cured by the appearance of both parties at a subsequent term, and the granting of a continuance on the motion of defendant.

      Error to St. Louis Circuit Cowrt.

    This was a suit instituted in the St. Louis Circuit Court at the April term, 1850, by William Farrell, to set aside the will of Michael Farrell, plaintiff’s brother, on the ground of mental imbecility and undue influence. The said will was duly proved. The petition made James Brennan, sole devisee under said will, defendant. James Cos and Esther his wife, Joseph Larkin and Andrew Larkin — said Esther, Joseph and Andrew being, as was alleged, co-heirs with the plaintiff of the testator — were made co-defendants pursuant to article 3, section .7, of the practice act of 1849. The petition alleged that the said Michael Farrell, by the will sought to be invalidated, devised all his property, real and personal, to James Brennan. Process issued against all the defendants, but service was had only on Brennan. Brennan answered, asserting the validity of the will. At the November term, 1850, the death of J ames Brennan was suggested, and Anne Brennan, his widow and administratrix, voluntarily appeared and was made a party defendant. At the November term, 1852, the death of William Farrell, plaintiff, was suggested, and A. J. P. Garesché, his administrator, appeared and was made plaintiff. There was no appearance on the other side. At April term, 1853, both parties appearing, the cause was continued on motion of defendant. At the November term, 1854, the court made the following order : “ The original parties to this suit having departed this life, and their proper representatives not having been brought before the court, on motion it is ordered and adjudged by the court that this suit abates.” The motion for judgment of abatement was made in behalf of defendant, Brennan’s administratrix. No steps had been taken to bring in the non-resident defendants. Plaintiff moved to vacate the said order and to reinstate the cause. Affidavits were filed in support of this motion, showing why it was that the public administrator of St. Louis county, into whose hands the estate of Michael Farrell, defendant’s alleged testator, passed rrpon the death of James Brennan, was not made a party. It also appeared therefrom that the whole estate of Michael consisted of personal property. The court overruled the motion.

      T. Polk and A. J. P. Garesché for plaintiff in error.
    I. The action did not abate by death of either plaintiff or defendant. (R. C. 1845, p. 1083, § 31, et seq., p. 824, § 4 & 5; Practice Act of 1849, art. 3, § 9.) The record shows that on the death of the defendant, James Brennan, the appearance of Ms administratrix was entered by consent of plaintiff, as well as of herself. This order substituting the administratrix of Brennan as party in his stead was upon tbe appearance of tbe plaintiff and therefore regular. (R. C. 1845, p. 824, § 16.) Although the record does not show that at the time the administrator of the plaintiff entered his appearance there had been service of scire facias upon the opposite party, or that said party appeared and consented thereto, yet it does show that afterwards said party appeared and moved the court for a continuance of the cause, and made no objection to the entering of the appearance of the administrator of plaintiff. This obviates the necessity of a scire facias, or of the appearance of defendant at the time of substitution. The appearance of the administratrix of defendant and the administrator of plaintiff having been entered, it was error to order the suit to be abated. As to the personalty of the estate of Michael Farrell, the administrators of both plaintiff and defendant were their proper legal representatives. Unless therefore that estate consisted of realty these administrators were proper parties. The record does not show that the estate was exclusively real estate; on the contrary, the bill of exceptions shows that it consisted exclusively of chattel interests. The administrators were therefore proper parties, and it was error to order the suit to be abated, even though other persons ought to have been brought in as parties.

      F. M. Field, for defendant in error.
    I. The principal question in the present case is as to the proper parties in a proceeding under the statute to set aside the probate of a will. The general rule at law and in equity is that all persons who have a material and direct interest in the subject of litigation are necessary parties. (1 Chit. PI. 10, 47, 73; Sto. Eq. PI. 86 et seq.; Calvert on Parties, 1, 151.) The distinction between courts of law and equity in this respect will be found to arise principally from the character of the interest — courts of law paying no regard to any interest save such as is strictly legal, while courts of equity look as well to the beneficial as the legal interest. The new practice act of 1849, art. 3, secs. 1 & 7, has in the main adopted the rule of equity, with this modification, that the bolder of the naked legal title is no longer any necessary party when no relief is sought in his behalf against him. In the case of the death of a party pendente lite, a suit at law always abated, but the rule was otherwise in equity. The defect in the practice at law has been remedied by various statutes, but these statutes have ceased now to be of any importance since the new practice act has applied to all cases the rule of practice in equity. (Art. 8, sec. 12.) The rule in equity has always been, that in case of the death of a party the suit must be revived in the name of the person succeeding to the interest of the deceased party as it appears on the face of the pleadings. If the party was suing or defending in an official or fiduciary capacity, his proper representative would be the successor to the office or trust. If the suit concerned the real estate of the deceased, it must be continued in the name of the heir ; if personal, in the name of the executor; and if both real and personal estate, then in the names of both heir and executor. (Sto. Eq. PI. § 354 et seq.; Calvert, 151, 219.) The rule as just stated has always prevailed in Missouri, although the formal mode of revivor is much simplified by the act regulating practice in chancery. (R. C. 1845.) This article was applied to all cases by the new practice act of 1849. (Art. 3, secs. 12.) According to the provisions of the 19th and 20th sections of the article just mentioned, a suit not revived within three terms after the suggestion of the death stood absolutely abated.
    The object of the suit before the court was to set aside a will purporting on its face to dispose of real and personal property. William Earrell was plaintiff, suing as well for himself as for his co-heirs, who were formal defendants. The only real defendant was James Brennan, who as executor of the will was entitled to the personal estate, and as devisee, entitled to the real estate. At the November term, 1851, the death of Brennan was suggested and his compound character became dissolved. His rights as executor passed to the administrator de bonis non of the testator; his rights as devisee were transmitted to his heirs. Plainly, the proper defendants in renewing the suit were the administrator de bonis non et cwm test, annexo of Michael Farrell, the testator, and the heirs of James Brennan, the devisee. But at the date of the judgment of abatement, more than five terms after the suggestion of Brennan’s death, none of these parties were before the court. Anne Brennan, the administratrix of the original defendant, was certainly no necessary party to the suit; but as she had ultimately an interest in the controversy, she was very properly permitted ex gratia to defend pro interesse suo. It is manifest that at this moment there is no substantial defendant on the record. Upon the death of William Farrell, the plaintiff, his interest in the personal estate of Michael Farrell passed to his administrator, and the latter was doubtless a proper party to the suit when revived. But his interest in the real estate descended to his heirs, and they were necessary parties as the representatives of that interest. More than three terms after the suggestion of William Farrell’s death had elapsed before the judgment of abatement, and the heirs were not made parties.
    II. There is a plain irregularity in the appearance of the administrator of William Farrell. It took place without any citation of adverse parties, and, as it were, behind the backs of those interested in the controversy.
    III. The allegation that the estate of Michael Farrell consisted of personal property only, supposing it be fully proved by the plaintiff’s ex parte affidavits, would not avail the plaintiff; for it so happens that the administrator who succeeded Brennan in the administration of that property under the will was not brought into court. But the conclusive answer to the plaintiff’s affidavits is, that the question of the proper parties in the actual state of the proceedings must be decided by the case made in the pleadings, and can never depend on any outside proofs.
    The section of our law under which the present suit was instituted is borrowed from the Virginia statute of 1785. (12 Henn. Stat. 142, sec. 11.) The course of proceeding under this statute is explained by Judge Baldwin, in Malone v. Hobbs, 1 Rob. 346. See also Coalter v. Bryan, 1 G-ratt. 18. In Kentucky tbe provisions of the Yirginia act were adopted in 1797. (2 M. & B. Dig. 1543, sec. 11. And see the exposition of the law in Rogers v. Thomas, 1 B. Monroe, 390 ; Livingston v. Livingston, 8 B. Mon. 240 ; Tibbats v. Barry, 10 B. Mon. 473.) Missouri borrowed the Yirginia act as early as 1807. (1 Terr. Laws, 133, sec. 28.) It has continued in force ever since. (See Swarey v. Blackman, 8J> Ohio, 5 ; Johnston v. Glumock, 2 Ala. N. S. 218; Moore v.. Guent, 8 Texas, 117.)

         This case was decided at the October term, 1856, of the Supreme Court. It was overlooked by the Reporter. A motion to quash the writ of error was filed in behalf of the defendant in error, on the ground that a writ of error would not lie; that the decision of the Circuit Court could be reviewed upon an appeal only. R. M. Field, in support of the motion to quash, maintained that a writ of error only lies to a court proceeding according to the course of the common law; (Bao. Abr. A. 3;) that in the present case the Circuit Court was exercising no jurisdiction according to the common law, but was acting as an appellate probate court, and was administering the same law as the English ecclesiastical courts modified by particular statutes; (Malone v. Hobbs, 1 Rob. Va. 346; Coalter v. Bryan, 1 Gratt. 18;) that the statute has restricted the lights of the parties in this proceeding to a correction of errors below to an appeal; (R. C. 1845, tit. Wills, §32;) that in all probate cases an appeal only is given by the statutes from the lower to the higher court; (R. C. 1845, tit. Courts, Judicial Power, § 13 et seq; ib. tit. Administration, art. 8, § 1, et seq;) that the language of the first section of the statute relating to practice in Supreme Court was interpreted in Anderson v. Biddle, 9 Mo. 580. The motion was overruled. — [Rep.

   Scott, Judge,

delivered the opinion of the court.

We see no warrant in the law for the action of the court; below in abating this suit. The question is not, who are alL the proper parties to the proceeding; but whether there were; any of the proper parties in court when it was abated. The 12th section of the 3d article of the practice act of 1849 enacts that “ suits may be revived in the cases and in the manner and with the effect now provided in article 5 of practice-in chancery, so far as may be consistent with the provisions-of this act.” Now if, as contended for by the defendant in error, this section continues in force the 19th section of the; 5th article of the act concerning chancery practice (R. C. 1845, p. 850), we see no authority in that section to sustain the action of the court below. The section referred to; provides that “ in all cases where the representatives of a deceased complainant or defendant shall not be made parties, according to the provisions of this act, on or before the third' term after the suggestion of the death, the suit shall abate as to such deceased party and the interest of his representatives therein, and the cause shall proceed in favor of and against the: survivors.” Now there being both a plaintiff and defendant in being on the record, it is obvious that this section conferred on the court no authority to abate the entire proceeding. The most that could have been done was to have abated it as to those who had not been brought in as required by law. It is singular, if the fact is as it is represented to be, that there is no real estate, the party did not amend his petition so as to remove this strife about parties.

It was said that the appearance of the representative of the plaintiff was made without notice to the opposite party. This irregularity was cured by the subsequent steps taken in the cause. At a term afterwards, both parties appeared, and the cause was continued for the reason that no notice of the revival had been given. This surely healed the error of the omission. The other judges concurring, the judgment will be reversed, and the cause remanded.


author: Byland, Judge,

text:
    Fagin, Respondent, v. Connoly, Appellant.
    1. Although, as a general rule, the interpretation of written instruments belongs to the court and not to the jury, the construction and true interpretation of commercial correspondence may, under proper circumstances, he properly left to the consideration of the jury.

      Appeal from St. Louis Circuit Court.

      Knox & Kellogg, for appellant.
    Hitchcock, for respondent.
   Byland, Judge,

delivered the opinion of the court.

Fagin, a miller in the city of St. Louis, shipped to Connoly & Co., who were his factors at the time in New Orleans, during the fall of the year 1853, quantities of flour for sale. Among the lots of flour thus sent were 1149 barrels of superfine. The flour was to be sold by defendants for the plaintiff Fagin, and under his directions. These 1149 barrels were in the possession of the defendants as factors and commission merchants of the plaintiff before the 5th of December, 1853, and so remained in their possession until the latter part of January, 1854, when the same were sold by the defendants for seven dollars per barrel, the then market price.

From the evidence presented by the bill of exceptions, it appears that Eagin by a dispatch by telegraph, dated 5th December, 1853, instructed the defendants to hold his flour at seven dollars for superfine, and extra flour in proportion; that after receipt of this dispatch the defendants wrote to Eagin at different dates advising the plaintiff to leave them to sell his flour without any limit as to price, trusting to their discretion. On the 13th of December, 1853, the plaintiff wrote to defendants and removed all limits as to his flour, hoping that they would do ample justice to him in closing sales, and requesting them to close the plaintiff’s business as soon as practicable. The court, who tried the case without a jury, found as a fact that this letter revoked all previous limits on the flour of plaintiff in the hands of defendants. This letter was received by defendants. The usual course by mail required about eight days. On the 21st of December, 1853, Eagin sent a dispatch by telegraph to defendants, which was received by them the same day or the next day, instructing them to hold his superfine flour and retail his extra flour. The defendants did hold his superfine flour until the 17th day of January, 1854, on which day, and on the following days up to the 20th of the same month, they sold the superfine flour of the plaintiff at seven dollars per barrel — the whole lot of 1149 barrels. This was done without any order from the plaintiff after the dispatch of the 21st of December. On the 31st of January, 1854, the plaintiff sent a dispatch by telegraph to defendants directing them to sell his flour after the receipt of the Atlantic’s” news. This dispatch was received by defendants on the 1st of February, 1854; and on .the same day the “Atlantic’s” news was published in New Orleans. The market price for superfine flour in New Orleans on that day and a few succeeding days was from f>7.75 to $7.87f per barrel. The flour would have realized in market, if it had been retained under the plaintiff’s dispatch until the 1st of February, 1854, not less than seventy-five cents per barrel net more than the price at which it was previously-sold.

Now the question here which was submitted to the court below for trial was, whether the defendants had sold the plaintiff’s flour contrary to orders; and the construction of the dispatch and letters on this subject was necessary to a proper solution of this question. In this case the meaning or construction of the dispatches has been found by the court as a fact in the same manner .as the jury would have found facts.

In Brown & Co. v. McGran, 14 Peters, 493, Mr. Justice Story, in delivering the opinion of the court, said: “ It is certainly true as a general rule, that the interpretation of written instruments properly belongs to the court and not to the jury; but there certainly are cases in which, from the different senses of the words used, or their obscure and indeterminate reference to unexplained circumstances, the true interpretation of the language may be left to the consideration of the jury for the purpose of carrying into effect the real intention of the parties. This is especially applicable to cases of commercial correspondence, where the real objects and intentions and agreements of the parties are often to be arrived at only by allusions to circumstances which are but improperly developed. McGran, in the letter of the 20th April, says that he wishes the defendants to hold any cottons on hand until they hear from him again.’ Now this language certainly ordinarily imports only a desire, and not an order, and yet there can.be no reasonable doubt that, under particular circumstances, a wish expressed by a consignor to a factor may amount to a positive command. So in the reply of 24th May the defendants say : ‘ Your wishes in respect to the cotton we now hold on your account are noted accordingly.’ Here again the point is open whether the language imports that the defendants construed the wishes of the plaintiff to be simply a strong expression of desire or opinion, or a positive order; and also whether the words noted accordingly’ import that the defendants took notice thereof, or took notice of, and assented to obey, the wishes or order of the plaintiff.” In Lucas v. Groning, 7 Taunt. 164, the meaning of the expression, “please to give them credit in exchange when the bills were duly honored,” became important to be ascertained. Gibbs, Ch. Justice, said: “ This was a question singularly fit for a jury, and one on which they were likely to arrive at a sounder conclusion than the court, because their knowledge of it arises from their daily experience. But the question whether the phrase, “when duly honored,’ means when they were accepted, or when they were paid, was a question not so much for the consideration of a court as of a jury.” Park, J., said: “The solicitor general argues that the phrase 1 duly honored’ means accepted. Whether it does so or not, has been left to the jury, and they have found that it meant payment, which is the opinion I should myself have formed.” In Rees v. Warwick, 2 Barn. & Ald. 113, the meaning of the words, “ Your bill of ¿6100, in favor of W. Johnson & Co., shall have attention,” was left to a jury to be ascertained ; and they by no means thought that the words, “ shall have attention,” were clearly and unequivocally an acceptance of the bill. What is the true interpretation of mercantile phrases, in such instructions or orders, is not always a question of law, but may in many cases be properly left to a jury to decide, where the phrases admit of different 'meanings. (Story on Agency, § 75.)

Under the principles contained in the above cases, and according to the authority above cited, the meaning of the dispatches and instructions given by plaintiff to defendants was not so much for the consideration of the court as a matter of law, as for the consideration of a jury. Here the court, sitting as a jury, found the meaning of these dispatches, and, according to such meaning, the defendants sold the flour contrary to orders, and are liable to plaintiff for the injury arising from such breach of orders. If the meaning of the dispatches was in so much doubt, or if this court might have found differently even from the court below, still that will not warrant our interference with the finding, where it might have been, from the evidence, either way. The construction of the dispatches not being a mere question of law, but more a question of fact, we can not as a matter of law say the court below erred.

From a careful examination of the evidence preserved in the record, I am satisfied with the finding of the court below, and entertain not the slightest doubt that the sale of the 1149 barrels of superfine flour was made against express directions. The whole correspondence between these parties warrants that conclusion. Here the superfine flour was under a limit — $7. The defendants wrote to. plaintiff advising him to remove all limit and leave the flour in their hands free to be sold at their discretion. He answers this letter, removing all limits. This answer reaches the defendants, but not before the telegraphic dispatch ordering them to “ hold superfine, and retail extra.” The telegraphic dispatch is dated 21st — the letter removing limits is dated 13th December. Now no matter what the defendants might have supposed to be the meaning of the dispatch, the moment they got the letter they would then see that Fagin sent the dispatch to do away with what he might suppose would be the effect of his letter on the superfine flour. He had removed all limits. He then withdrew from market his superfine flour by his dispatch — waiting for a better market ahead. The defendants had no right to suppose the dispatch was the' answer of Fagin to their letter asking to withdraw all limit on the price of the flour, after they received his letter expressly purporting to answer it. They should have examined the dates of the letter and the dispatch, and then I think that there could have been no mistake about the intentions of Fagin. After Fagin’s dispatch ordering defendants to “ hold superfine and retail extra,” if the market had risen to ten dollars per barrel, they had no right to sell the superfine without further orders from Fagin. The withholding the superfine was not until at a certain price in market, but must mean until further orders. The judgment will be affirmed; the other judges concurring.


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    E. W. Clark & Bro., Appellants, v. Humphreys, Respondent.
    1. A master of a vessel, as such, has poiver to bind the owners for necessaries and repairs only: the burden of proving the necessity lies upon the creditor.
    2. A custom or usage of trade, to be valid and binding, must be reasonable.
    3. A custom or usage among masters and clerks of steamboats for the master to draw bills of exchange upon the clerk, and negotiate the same, is an unreasonable custom and can not be invoked to fix a liability upon the owners to the parties to whom such bills of exchange may be transferred.

      Appeal from St. Louis Cowrt of Common Pleas.

    This was a suit brought by E. W. Clark & Bro., bankers, payees of the bills of exchange set forth below, against Solon Humphreys and Henry Corwitli as part owners of the steamboat “ Michigan.”
    “ Exchange for 11500. St. Louis, Mo., 10th July, 1854. Three days after sight of this first of exchange (second unpaid), pay to the order of E. W. Clark & Bro., at the office of Samuel Smith & Co., fifteen hundred dollars, for value received, for steamer Michigan and owners. [Signed] per Robert A. Reilly, master. To. W. M. Tompkins, jr., clerk of steamboat Michigan, New Orleans, La.”
    “ Exchange for $875. St. Louis, Mo., 13th July, 1854. Two days after sight of this first of exchange (second unpaid), pay to the order of E. W. Clark & Bro., three hundred and seventy-five dollars, for value received, account of steamboat Michigan and owners. [Signed] per Robert A. Reilly, master. To Wm. M. Tompkins, jr., clerk steamboat Michigan, New Orleans, La.”
    The petition set forth the drawing of the above bills on behalf of said steamboat Michigan by the master thereof, R. A. Reilly, and their acceptance, July 20, 1854, by the drawee, W. M. Tompkins, clerk of said boat; also their presentment for payment at maturity, and their protest for non-payment; of all of which defendants are alleged to have had due notice.
    The suit was dismissed as to Oorwith. At the trial the following proof was introduced by plaintiffs: That at the dates of said bills of exchange the defendant Solon Humphreys and Henry Corwith and Robert A. Reilly were owners of the steamboat Michigan, and said Reilly was master, and William M. Tompkins, clerk of said steamboat; that the bills of exchange sued on were drawn by said Reilly and accepted by said Tompkins as stated in the petition; that they were protested for non-payment; that neither the drawer nor the acceptor of said bills, nor the owners of said steamboat, provided any funds for the payment thereof; that said Tompkins accepted said bills solely as clerk of said boat, and had no funds in his possession for their payment from the time the same were drawn till their maturity; that “ for the last twenty years it has been the general custom of the masters of steamboats to draw bills of exchange like those sued on ; that it was often specified in such bills on what account they were drawn ; that this is often done for the purpose of raising money to defray the expenses of running steamboats and for paying charges; that it has been a general custom for such bills to be drawn and negotiated, and such was the usual practice of officers of steamboats.”
    Upon the above evidence the plaintiff asked the court to give the following instructions: “1. The notice to one of several owners of a steamboat of the dishonor of a bill of exchange drawn by the officers of a steamboat is a notice to all. If the jury find from the evidence that Robert A. Reilly was a part owner of the steamer Michigan at the date of the bills of exchange sued on, and that the said Reilly had due notice of the presentation and dishonor of said bills of exchange, such notice is sufficient to bind the other owners of said boat; provided the jury shall further find that the drawing of bills of exchange is within the usual and customary business of the masters and clerks of steamboats. 2. If the jury find from the evidence that the bills of exchange were drawn and accepted as stated in plaintiffs’ petition, and that said Reilly and said Tompkins knew, when said bills were drawn and accepted, and when they were payable, that said bills would not be paid when due, and that in fact no money was provided by the officers or owners of said boat to pay said bills at their maturity, then the owners of said boat can not relieve themselves, and are not discharged from liability, in consequence of not having received notice of the non-payment of said bills of exchange. 3. If the drawing, endorsing and accepting of bills of exchange be within the ordinary and customary business of masters and clerks of steamboats, then such acts may be binding upon the owners of steamboats whose masters or clerks draw, endorse or accept such bills, and the owners of steamboats may be held liable on said bills. 4. If the jury find from the evidence that Robert A. Reilly was, at the date of the bills of exchange sued on, master of the steamboat “ Michigan,” and drew the bills sued on on William M. Tompkins, clerk of said boat; that said Tompkins was then clerk of said boat, and accepted the same; that said bills were duly presented for payment and payment thereof .was duly demanded, according to the tenor of said bills, and was refused; that said bills were duly protested for non-payment, and that the defendant had due notice of said demand, refusal and protest; and if the jury shall further find that it was within the usual and ordinary scope of the business of the officers of boats to draw and accept bills of exchange, they will find for the plaintiffs in this suit. 5. If it be within the ordinary and customary business of the officers of steamboats to draw and accept bills of exchange for or on account of their boats, then a notice of the dishonor of such bills so drawn, duly given to such officers, is as effective to bind the owners of boats as if such owners had received personal notice.”
    The court refused to give the foregoing instructions, and instructed the jury that upon the facts proved the plaintiffs were not entitled to recover ; whereupon the plaintiffs took a non-suit, with leave, &c.

      Knox & Kellogg, for appellants.
    I. There is always an implied authority vested in an agent to do all such acts as it is usual and customary for agents in similar circumstances to perform. As there is no law prohibiting masters and clerks of steamboats from drawing and accepting bills of exchange, and it has ever been recognized as an authority incident to their business, and usually exercised, there is nothing either in the law or reason that will prevent the owners of steamboats from being liable on such bills of exchange. Owners of steamboats are bound by the negotiable paper executed by the officers of steamboats. (6 Mo. 355 ; 9 Mo. 654; 10 Mo. 531.)
    II. There was no necessity of a notice of non-payment in this case. (Sto. on Bills, § 367.) Besides, notice to Reilly was notice to all. A notice to the master and clerk was a notice to the owners.

      H. Hitchcock, for respondent.
    The master and clerk of a steamboat have no authority, as' such, to draw, accept or endorse bills of exchange in the name or behalf of the owners, so as to bind them without special authority. (See 10 Met-calf, 375 ; Abbott on Shipping, 173.) Nor has he such power as part owner. (Abbott on Ship. p. 107.) No usage for a master to draw bills on his owners is legal, valid or binding ; nor should proof of such usage have even been received. (10 Metcalf, 375 ; 5 Shep. 147.) The authority of a master as such to bind the owners even for necessaries, does not exist at home. (Arthur v. Burton, 6 Mees. & Weis. 188 ; Abbott on Ship. 175.) The power of a master to bind the owners either for necessaries or repairs, like that to hypothe-cate the ship, applies to foreign ports, and this does not either at such ports or at home include the power to draw, accept or endorse bills of exchange — at least unless it be affirmatively shown what the object, and necessity of the transaction were. (See Abbott on Shipping, p. 152, 167, 168, 172, & notes.) There being no evidence as to the purpose for which the bills in question were drawn, nor of the application of the money raised upon them, nor of any special authority to draw, accept or endorse them, the instructions asked were properly refused.
   Scott, Judge,

delivered the opinion of the court.

By the maritime law, the authority and duties of masters of vessels are defined. The master only has authority to bind the ship-owner for necessaries and repairs, and the burthen of proof is on the creditor to show that the services rendered, or the money and goods advanced, were for those purposes, or to prove the actual existence of the necessity of those things which give rise to his demand. (Abbott on Ship. 172.) If a bill is drawn by a master and passed by negotiation to an innocent endorsee, the burthen of proof will be shifted from the creditor to the owner to his disadvantage. Collier says that a partner will not be liable even to a bona fide endorsee if he can show that the bill was given on another account than for necessaries. (Sec. 1227.) Thus showing that, by drawing a bill which passes to an innocent endorsee, the burden of proof will be changed from one party to the other.

It does not appear that the bills in controversy were drawn for necessaries, unless the words on the face of them, “ for value received, account of steamboat Michigan and owners,” import as much. But this will not relieve the creditor, “in our opinion, from the necessity of proving that the debt was contracted for necessaries, or that a necessity existed which rendered the credit necessary.

We do not see how the custom proved affects the owners of vessels. The evidence is silent as to whether they acknowledged themselves bound by such bills. If the captain or master draws bills or orders on the clerk and they are honored, that may be a private arrangement between themselves for their own convenience in managing the concerns of the boat, and can not affect the owners, nor show that they regarded themselves liable for such acts of their agents. But a custom that a master of a boat, by a bill of exchange on the clerk of the same boat, may bind the owners for any sum ho may see fit to draw, would be so inconvenient and unreasonable that no wise system of law could sanction it. Prudent men would scarcely consent to become owners of vessels under such a state of law. In the case of Bowen et al. v. Stoddard, 10 Met. 380, the court held that there was no such relation between the joint owners of a vessel as would warrant the conclusion that a bill drawn by one of them on the others in a foreign port for necessaries would be an acceptance of such bill. It was moreover holden that a usage among the merchants of New Bedford and Fairhaven, engaged in the whaling trade, to accept the bills of their masters drawn for supplies furnished abroad, is not such a one as can charge the owners as acceptors; for a usage to be legal must be reasonable as well as convenient, and that a usage can not be reasonable which puts at hazard the property of the owners at the pleasure of the master by making them responsible as acceptors on bills drawn by him. There is no hardship in this, for if it is necessary that a master should-have such authority it is a very easy matter to confer it on him by express words. The owner then, knowing in whom he confided, would not be in danger of being ruined by the acts of his agents. Á. constituent may be willing to entrust to an agent an authority for some purposes, whilst an authority for other purposes would be carefully withheld from him.

From the petition, it would seem that this cause in the court below turned on an implied authority in the master to draw the bills and the custom which was attempted to be set up by the evidence. The fact came out on the trial that the master was also part owner of the boat. Giving the plaintiffs the full benefit of this disclosure and amending the pleadings to accommodate them to this state of facts, and we are satisfied that he is not entitled to recover for the reasons that have been stated. The other judges concurring, the judgment will be affirmed.