text:
    Blumenthal, Respondent, v. Kurth, Appellant.
    1. Where a new trial is granted on the motion of defendant, on condition that defendant pay the costs, there is no irregularity in allowing the plaintiff to amend the judgment (as by giving judgment for the possession of land, in accordance with the verdict of the jury, where, through inadvertence, a judgment for costs alone had been entered) after the order for the new trial is made and before the costs are paid.
    2. Where an order granting a new trial to a defendant, on condition of his . paying costs, is after the lapse of several terms and before the payment of the costs by defendant, vacated on the motion of plaintiff; held, that defendant is not entitled to notice of this motion.

      Jlppeal from St. Louis Circuit Court.

    The facts are stated in the opinion of the court.

      Krum & Harding, for appellant.
    1. The Circuit Court committed error in vacating the previous entries, and at April term, 1843, rendering a different judgment against the appellant, without notice to him, and no appearance on his part, and that, too, after a new trial had been granted. 2. There was also error in vacating the order granting a new trial. This proceeding, too,'at April term, 1854, was without notice to the appellant, and there was no appearance on his part. The amendments complained of were not as to matters of form, but of substance. (R. S. 1845, art. 6, p. 826; 7 Mo. 320; 8 id. 334; Tidd’s Prac. 760.) ■ 3. Notice should have been given of the motion to amend the record. (R. S. 1845, p. 826, art. 6 ; 1 Dunl. Pract. 295; 6 Call, 12.)
    Dick, for respondent.
    1. This appeal was not taken in time ' to be heard by this court. (Code of Practice, 1849, art. 19, sec. 8.) 2. The court committed no error in amending the record by making the judgment .conform to the verdict. (1 Mo. 16, 110 ; 5 Burr. 2730 ; Hardin, 64; 4 Conn. 77 ; 3 T. R. 350 ; 2 Str. 786, 1132, 1156; 10 Maine, 278 ; 1 Tidd’s Pract. 662 ; 2 id. 862-3.; 5 Mo. 214; l9.Mo. 158, 415 ; 16 Mo. 225 ; Sess. Acts, 1849, p. 87; R. '0. 1845, p. 827, 906; 1 Gall. 260; 2 Bibb, 88; Grah. Pract. 667 ; 6 Ired. 425; 5 Ired. 12 ; 18 Maine, 186 ; 1 Humph. 379, 380 ; 1 Scam. 122 ; 3 Ala. 609, 632.)
   Scott, Judge,

delivered the opinion of the court.

This suit was brought to the November term, 1851. At the April term, 1852, on the 6th day of October, there was a trial in the absence of the defendant, and a verdict was rendered for the plaintiff. On the day following, a judgment for costs was entered against the defendant. During the same term, on the 16th October, the judgment against Kurth was set aside, on the condition of his paying the costs of the trial, and .the plaintiff took leave to file an amended petition on or before the next term of the court. At the November- term, 1852, on the 18th of December, the defendant moved the court to set aside so much of the order granting him a new trial as imposed the condition of the payment of costs. At the same term, on the 13th February, 1853, this motion was overruled, and the defendant excepted, and, in the following vacation, on the 12th March, obtained an appeal from the clerk of the court to the Supreme Court. Afterwards, at the April term, 1853', on the22d October, the plaintiff, on motion, had his judgment amended so as to make it formal. At the April term, 1854, on the 11th of May, the plaintiff moved the court to vacate the order setting aside the first judgment and granting a) new trial, because the defendant had failed to comply with the condition on which it was granted, and afterwards this motion, on the 16th of May, was sustained, and the motion for a new trial was overruled, and the defendant appealed to this court.

In England, the payment of costs, on the granting of a new trial, is conditional, and until the order for the payment of them is complied with, no new trial can be had. (Tidd, 824.)

As the new trial was granted conditionally, there was no irregularity in the plaintiff in amending his judgment after the order for the new trial was made and before the costs were paid. The amendment was a formal one, and couíd not possibly have prejudiced the defendant. It Was due to the orderly administration of justice, that it should have been done. Notice would have been of no avail to the defendant, and the 6th article of the practice act, (R. C. 826, sec. 2,) is not applicable. When the order granting a new trial was vacated, the defendant was or ought to have been in court; he was aware of his default; his conduct had been vexatious, and there is no reason why he should have had notice of such motion. After the great delay in the payment of the costs, he must have known that he would not always be permitted to keep the plaintiff waiting on him.

The other judges concurring,

the judgment will^be affirmed.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    Musick, Respondent, v. Chamlin, Appellant.
    1. A justice of the peace has jurisdiction of a suit to recover the balance of the purchase money of land, where the credits allowed bring tile amount claimed within the sum for which the justice can entertain suits.

      Jlppeal from St. Louis Law Commissioner’s Court.

    The facts sufficiently appear in the opinion of the court.

      Cline & Jamison and Woods, for appellant.

      Burke and Page, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This was a suit commenced before a justice of the peace for the balance of the purchase money for a tract of land sold by plaintiff to defendant. The account was filed with the justice, stating the original price of the land sold, and giving credit for various amounts, reducing the indebtedness down to the sum of $84 68.

The plaintiff obtained judgment before the justice, and an appeal was taken to the law commissioner’s court. There the defendant filed a motion to dismiss the appeal, assigning various reasons therefor — one of which was, that the'justice of the peace had no jurisdiction of the cause of action, and, consequently, that the law commissioner’s court could not entertain the appeal. This motion was overruled and excepted to.

Upon a trial in the law commissioner’s court, judgment was again rendered for the plaintiff for the sum of $60 27. A motidn for a new trial being made and overruled, the defendant appealed to this court.

In looking over the whole record, with its various motions and reasons therefor, I can find .no sufficient error to authorize this court to reverse the judgment. There is nothing in all the various reasons assigned for dismissing the appeal. The balance of the purchase money was within the magistrate’s jurisdiction, and there is no reason why he should resort to the Circuit Court or Common Pleas, when a justice’s court had jurisdiction of such a case. Nor is there any thing in all the various instructions prayed for by the defendant, and which the law commissioner refused.

The whole cause of all the complaint and of all the opposition to the trial in the law commissioner’s court is plainly attributable to the fact that defendant, in order to obtain the relinquishment of the dower of the wife of the plaintiff in and to the land sold by plaintiff to the defendant, he (the defendant) had to pay to the wife the sum of fifty dollars. The plaintiff had nothing to do with this money, as the record shows, nor is he responsible for it. If the defendant thought proper to buy the good will of the wife, and thereby obtain her relinquishment, rather than resort to an action against the plaintiff for breach of contract, let him not afterwards object to the paying of the balance due to the plaintiff for the land.

Upon the whole record, we think justice has been done, and judgment given for the right party. Let.it therefore be affirmed ;

the other judges concurring.


author: Scott, Judge,

text:
    Pomeroy & Andrews, Respondents, v. Sigerson, Appellant.
    X. P. & A., partners, commission and forwarding merchants in St. Louis, advertised that they would make liberal cash advances upon produce placed in their hands for sale in New Orleans, New York, or Liverpool. J. S. delivered to P. & A. 386 barrels of lard with the request that it should he “sent forward from New Orleans to Liverpool, provided your (P. & A.’s) correspondents are in a situation to do that kind of business, and have correspondents that they are satisfied will protect their and our interest.” P. & A. made advances upon said lard, and shipped the same to their correspondents in New Orleans, with instructions to ship the same to Liverpool, provided it could be drawn upon so as to cover the advances made to J. S. by P. & A., with charges, &c., otherwise to sell the same in New Orleans. The New Orleans house, not being able to secure advances so as to cover the advances of P. & A., sold the lard, and failed soon after, not having rendered any account'of the proceeds. Held, in a suit by P. & A. against J. S. to recover the advances made by P. & A., that it should be left to the jury to determine whether it was not the 'Understanding of the parties that J. S. should look to P. & A. for the money arising from the sale of the lard; in short, whether P. & A. were not the agents for the sale of the lard, and those whom they employed, their sub-agents, for whose conduct they are liable.
    2. An arrangement between forwarding and commission merchants in St. Louis, and their correspondents in New Orleans, that on all sales of produce shipped by the St. Louis house to that in New Orleans, one per cent, of the usual commission of 2d per cent, should be returned to the St. Louis house, does not constitute the two houses partners.
    3. In suits commenced under the old system of practice, the rules of evidence, as they then existed, will govern in ascertaining the competency of a witness.

      Appeal from St. Louis Circuit Court.

    This case was formerly before the Supreme Court, and is reported in 18 Mo. 360. Being then reversed and remanded to the Circuit Court, a new trial was there had, which resulted in a verdict and judgment for the plaintiffs. At the trial, it was in evidence that the plaintiffs were commission and forwarding merchants in St. Louis, and had advertised that they would make liberal cash advances upon produce placed in their hands for sale in New Orleans, New York, or Liverpool. In the year 1848, the defendant, at different times, from the 1st to the 18th of April, delivered to plaintiffs, pork, bacon and lard, to be shipped by them and sold. Among other lots delivered were 410 barrels of lard, 386 barrels of which were destined for Liverpool, as is shown by the following letter: “St. Louis, April 10th, 1848. Messrs. Pomeroy & Andrews : Gents. — I herewith hand you dray tickets and invoice-of 410 barrels of lard, 386 of which is a prime article and in fine order, and which I wish sent forward direct from New Orleans to Liverpool, provided your correspondents are in a situation to do that kind of business, and have correspondents that they are satisfied will protect their and our interest. The twenty-four barrels marked ‘ lard5 is an article manufactured from heads and will be found quite a common article, which I wish them to sell in New Orleans or ship to Boston, as they may think best,55 &c. This direction, in the form of a letter, was' signed by John Sigerson, defendant-in this suit. The plaintiffs made advances upon the pork, lard, &c., amounting in all to somewhat more than $6000, of which sum $4000 were advanced by plaintiffs on the 410 barrels of lard.
    There was also evidence tending to prove that there was due plaintiffs a balance of $474 12, on a partially executed contract for the purchase of a quantity of pork by plaintiffs for Andrews &Bro., of New Orleans, on which contract plaintiffs had paid to defendant $3500. The whole amount claimed by plaintiffs in the present action, including the above balance, was, after allowing credits, $6883 84.
    It was in evidence that the property put by defendant, Sigerson, in plaintiffs5 hands for shipment and sale, (except six casks of bacon, of which plaintiffs admitted the sale and gave defendant credit for the proceeds in their account,) was shipped by plaintiffs to the commercial house of Andrews & Bro., of New Orleans. The house of Andrews & Bro. failed soon after the shipments to it, and both members of the house committed suicide. There was much evidence introduced tending to show that at the time of the shipments the said house was in good credit and standing ; there was also some testimony leading to an opposite conclusion. There' was also evidence tending to show that the 410 barrels of lard were sold by Andrews & Bro-in New Orleans, previous to their failure. It did not appear, however, what was done with the other property shipped to Andrews & Brother.
    On the day (April 12, 1848) defendant delivered the 410 barrels of lard to plaintiffs (accompanying the delivery with the letter of instructions above set forth), plaintiffs wrote to Andrews & Brother, enclosing the letter of instructions above set forth, and a bill of lading of the 410 barrels of lard. The letter is as follows : “ St. Louis, April 12th, 1848. Messrs. Andrews & Brother : Enclosed find bill of lading for 410 barrels of lard, shipped per account of John Sigerson, with copy of instructions from him. It'is his wish to have it shipped to Liverpool, providing it can be done so as to protect our interest and his ; and if not, to be spld to best advantage in New Orleans. I expect it is a fine article, all except the twenty barrels. If we can negotiate, we shall have to advance about $4000 on this shipment. So if it can be shipped to Liverpool and drawn upon by you to make our advance' good, with all charges, for receiving and forwarding, better send it through, as he is very anxious to have it sent to Liverpool; and we would like to know how we are to do business with persons wishing to ship direct to Europe through your house, as there may be considerable business of that kind to do. We could not say positively to J. Sigerson that it would be sent to Liverpool, as we were not fully instructed by you about- such consignments. Please answer this immediately, that we may advise him what is done. Yours truly, Pomeroy & Andrews. ” Andrews & Brother wrote to plaintiffs in reply to this letter. Their letter is -dated April 19th, 1848, and contained the following passage : “ Make no positive arrangements for shipping from here where you advance. We have offered the lard to all those we would ship to their houses in Liverpool, and they won”t any of them advance over three cents per pound.” This would have amounted to less than the sum advanced by plaintiffs on said lard. This letter was shown to defendant, J. Sigerson.
    It was in evidence that the plaintiffs raised all the money advanced by them to defendant, by drawing bills on Andrews & Brother, which were sold to L. A. Benoist & Co., bankers at St. Louis, and a bill for $4000 drawn against the shipment of lard, was introduced in evidence, with the proof that it belonged to plaintiffs, they having settled with Benoist & Co., and given their notes. There was no evidence given as to whether the bills drawn against the other shipments were paid or not by-Andrews & Brother. There was evidence tending to prove that at the time of their failure the house of Andrews & Brother was insolvent.
    It also appeared in evidence that there was an arrangement between plaintiffs and Andrews & Brother, that on all shipments by plaintiffs to them, one per cent, commissions on sales should be returned to plaintiffs; the usual commissions on sales being 2-| per cent. ; that is, Andrews & Brother charged one and one half per cent, in their accounts with plaintiffs, instead of the usual commission, to-wit, 2-^ per cent., remitting the one per cent, in favor of plaintiffs. This was plaintiffs” only compensation for shipping, advancing, &c., in St. Louis.
    At the trial, plaintiffs called as a witness Louis A. Benoist, member of the firm of L. A. Benoist & Co., bankers ; defendant objected to his being sworn on the ground of his interest in the result of this suit. He was excluded. The plaintiff's then offered to read a deposition of said Louis A. Benoist, to the reading of which defendant also objected, on the ground of interest, and to support the objection, read to the court the deposition itself, in which it is stated by said Benoist that it was understood between plaintiffs and himself that if plaintiff recover judgment in this suit, against the defendant, the money is to be paid to the house of L. A. Benoist & Oo. Defendant also read to the court an assignment by Pomeroy & Andrews, plaintiffs, to L. A. Benoist and James S. Thomas, of the first judgment obtained in this cause. This assignment was dated March 11th, 1849 ; the deposition was taken October 20,1848. The court overruled the objection, and permitted the deposition to be read. This suit was commenced under the old practice.
    There was evidence tending to show that if the 886 barrels of lard had been sent to Liverpool, a large profit would have been made thereon.
    The court, on the motion of plaintiffs, gave the following instructions : “ 1. It is for the jury to ascertain from all the proof in the case, whether there was any violation of the defendant’s instructions on the part of the plaintiffs in the transactions in question; if they did violate these instructions, then the jury will deduct from the claim of plaintiffs such damages as the defendant has proved to their satisfaction he sustained by reason of plaintiffs’ violation of his instructions. But if they find, on the contrary, that there was no violation on the part of the plaintiffs of defendant’s instructions, and that they acted in good faith, and with usual ca.re in the premises, and that no part of the proceeds have ever been received by the plaintiffs, after the exercise of due diligence, and also find that after a reasonable time and notice to defendant this suit was brought, then the plaintiffs are entitled to recover the charges in account made by them against John Sigerson, which they may have proved to the satisfaction of the jury. 2. If the jury find that the agreement respecting one per cent, between the houses of Andrews & Bro. and Pomeroy & Andrews, was merely a stipulated compensation and inducement for sending them business and for their services in this respect as commission merchants, then there is no liability on the part of Pomeroy & Andrews, as co-partners, with the New Orleans house.”
    The defendant asked and the court gave the following instruction : 1. The plaintiffs cannot recover the advances made by them, without showing the disposition made of the goods advanced upon, and that they have not been repaid their advances out of the goods or their proceeds.”
    The court refused the following, asked by defendant: “2. When a consignment is made to a commission merchant, with conditions and instructions accompanying the same, the acceptance of it by such commission merchant is an assent to such conditions or instructions ; and if the jury find defendant consigned to plaintiffs or their commission merchants 386 barrels prime lard and accompanied the same with a note in writing, to the effect that he wished the lard sent forward direct from New Orleans to Liverpool, provided the correspondents of plaintiffs were in a situation to do that sort of business, and had correspondents who they were satisfied would protect the interests of plaintiffs and defendant, and that the plaintiffs did, after learning the contents of said note, accept the said consignment; that by such acceptance the plaintiffs did tty force of law become bound by the conditions and instructions contained in said note, and did agree with defendant that their correspondents were in a situation to do that sort of business, and had such correspondents as were mentioned in said note, and that it was the duty of the plaintiffs, after receiving said consignment, to cause the same to be .sent forward to Liverpool for sale without unreasonable delay. 3. If the plaintiffs have violated their agreements with defendant or disobeyed his instructions in regard to the several consignments, or any one of them shown by the evidence to have been made by defendant to them, and loss has ensued to the defendant therefrom, the plaintiffs are not entitled to recover their advancements sued for in this action, without deducting the loss so sustained. 4. If the jury find that plaintiffs accepted the consignment of 386 barrels of lard, with instructions and conditions such as are mentioned in defendant’s note to plaintiffs, dated April 12, 1848, and plaintiff's on the same day forwarded the sanae to New Orleans to their correspondents, Andrews & Bro., and instructed them not to ship the same to Liverpool unless they could draw on it SO- as to make good the advances of plaintiffs, with all charges for receiving and forwarding, and otherwise to sell the same in New Orleans, they will find that said plaintiffs violated the instructions of the defendant, in so instructing their then correspondents in New Orleans, and are responsible for all the damages that did ensue. 5. IE the plaintiffs hold themselves out to the public as prepared to make advances on produce put into their hands for sale in Liverpool and received a consignment afterwards from defendant for that purpose, with the understanding that they (plaintiffs) had correspondents in a situation to do that sort of business, and that such correspondents had other correspondents who they were satisfied would protect the interests of both plaintiffs and defendant in the contemplated shipment to Liverpool, and such was not the fact, the jury will find that plaintiffs have acted in bad faith, have violated their agreement with defendant, and are responsible for all the damages that did ensue. 11. The defendant moves the court to instruct the jury that if the plaintiffs received consignments of produce from the defendant, as his commission merchants, and agreed to forward the same, under the instructions of the defendant, for a market, and to cause the same to be- sold by themselves or their correspondents, and the same was sent by plaintiffs to certain correspondents of theirs in New Orleans, the house of Andrews & Bro., and that the plaintiffs sent the same to said A. &Bro., in New Orleans, because they were to do so by arrangement previously made between the said plaintiffs & Andrews & Bro., wherein the said Andrews & Bro. were to divide the commissions arising from the same with' plaintiffs, the jury will find that said Andrews & Bro. were the sub-agents of the plaintiffs, and that the plaintiffs are liable ffor any amount of the proceeds of said sales received by them, and for any other act of Andrews & Bro. which may have been injurious to defendant.”
    There were other instructions asked on the part of defendant and refused by the court, which it is unnecessary to set forth. The jury rendered a verdict for plaintiffs for $8849 21.

      Glover & Richardson and Barton Bates, for appellant.
    1. The delivery of the lard to Pomeroy & Andrews was made upon the faith of their having the facilities named in the note of Sigerson to them, of April 12, 1848, for sending the lard to Liverpool. If they had no such facilities they should have refused to receive it. The legal effect of their accepting the lard, with the instructions contained in the above letter, was an admission that they possessed such facilities and would send it to Liverpool. This is what defendant’s second instruction was intended to declare. Pomeroy & Andrews had advertised that they would make liberal cash advances on produce placed in their hands for sale in Liverpool. This advertisement placed them in the position of agents selling goods in Liverpool and making cash advances upon them for that market. Such being their position, the instructions accompanying the delivery are easily understood. Accepting the goods, they took them subject to the conditions contained in. the letter. (4 Dali. 889 ; 3 Wash. C. C. 151; 1 Sandf. S. C. 360; 4 Johns. 402.) The court should have instructed the jury as to the legal effect of the instructions contained in the note of Sigerson to Pomeroy & Andrews, and should not have left it to the jury from “ all the proof in the case” to be .construed by them. 2. But granting that Pomeroy & Andrews were bound merely to use their best endeavors to send the lard forward to Liverpool, provided they could procure the requisite facilities, and did not by the act of accepting, under the circumstances, agree that they had the requisite facilities ; did they do their duty under this view of the matter ? or conform to the wishes and directions of Mr. Sigerson ? They send the 386 barrels of lard to New Orleans, with Sigerson’s note, inquire how this business is to be conducted, (showing that when they advertised to sell produce in Liverpool, they had made no arrangements at all to do it,) and then, without waiting any reply to their inquiries, direct a sale of the lard in New .Orleans unless their advances and all charges can be raised by bills on it when shipped to Liverpool. Their duty was to send the lard to Liverpool, if honest and faithful correspondents could be procured. They agreed to do so. They did nothing toward procuring such cor-

      respondents. 3. Defendant’s fifth instruction was erroneously refused. 4. The agreement between Pomeroy & Andrews and Andrews & Bro. constituted them partners as to goods consigned to the latter from under such agreement. (1 Smith’s Lea. Cas. p. 600, top.) 5. The eleventh instruction asked by defendant was improperly refused. If Andrews & Bro. were not partners, they were merely the sub-agents of Pomeroy & Andrews, receiving a compensation of 1{- per cent, commission from them.
    Field & Kasson, for respondent.
    1. The second instruction asked by defendant entirely overlooked the proviso contained in Sigerson’s note to Pomeroy & Andrews. That letter did not require the lard to be sent forward to Liverpool. A discretion.was given to the consignees in New Orleans. The letter shows no desire on Sigerson’s part to have the lard go forward at all unless plaintiffs’ correspondents in New Orleans did that kind of business ; nor unless they also had correspondents in Liverpool, who would “ protect their and our interest.” By this letter, Sigerson recognized an existing interest in Pomeroy & Andrews, of St. Louis, and an interest to exist in A. & Bro., of New Orleans. This interest was created by the advance made on the lard. Before they, by mercantile usage, could be obliged to forward it to Liverpool, they were also entitled to be secured for their advances, and freight and charges. The published advertisement of plaintiffs is wholly irrelevant here, in the face of the express arrangement. Defendant’s instruction, No. 2, gives a wrong construction to Sigerson’s letter. Sigerson knew as fully respecting the house of Andrews & Brother as plaintiffs, and knew it was doubtful if the lard could be sent' forward, and knew it could not be unless the market were such as to admit of its being drawn against to cover advances and charges and freight. This letter of April 12th shows this. 2. There was no copartnership existing between plaintiffs and Andrews & Brother. (See 1 Smith’s S. O. 836, top page ; 3 Wils. 40 ; 1 Camp. 329 ; 2 H. Bl. 590 ; 4 Esp. 182; 4 M. & Sel. 240 ; 6 Mete. 92 ; 8 C. B. 32.) 3. Defendant’s instruction 11 was properly refused. There was no evidence whatever of any agreement between Pomeroy & Andrews and Andrews & Brother to the effect that the former were bound to send all their consignments to the latter. If Andrews & Brother were the sub-agents of Pomeroy & Andrews, they were sub-agents in the'sense that all correspondents are, where a distant market is sought, and not in any such sense as that implied in the instruction above referred to. Andrews & Brother were as much agents of Sigerson as of Pomeroy & Andrews. 4. The deposition of Benoist, taken before his disqualification by taking the assignment of the judgment, was properly admitted. (1 Greenl. Ev. § 168.)
   Scott, Judge,

delivered the opinion of the court.

In our opinion, this cause has not been tried on the real point involved in it. That point is, whether Pomeroy & Andrews received the produce of Sigerson as mere forwarding agents, or whether, under their advertisements in the newspapers, it was placed in their hands for sale. Or, in other words, was it the understanding between the parties that Sigerson should look to Pomeroy & Andrews for the money arising from the sale of his produce ; or was he bound to look to the agent Pomeroy & Andrews might employ, without knowing who he was ? Suppose the produce had been forwarded to Liverpool and the proceeds of the sale made way with by an insolvent agent there: to whom would Sigerson have looked for his produce — to Andrews & Brother, or to Pomeroy & Andrews ? It can make no difference that the directions of Sigerson could not be complied with. If the produce was placed in the hands of Pomeroy & Andrews, to be sold in a particular way, their inability to comply with the directions would not vary the undertakings they assumed at the outset. If Pomeroy & Andrews were liable to Sigerson for the proceeds of the sale when they received the produce, they remained liable, notwithstanding their inability to sell it, as they were directed. The fact that Sigerson did not object to tbe arrangement made by Pomeroy & Andrews with Andrews & Brother, respecting the sale of the lard, does not prove that Sigerson released them from liability as his agents for the sale of it.

There were facts and circumstances in the case which should have been submitted to the jury, with a direction to determine whether Pomeroy & Andrews were not the agents for the sale of the lard, and that those whom they employed were their sub-agents, for whose conduct they were liable.' This is a question for the jury, and we express no opinion in relation to it.

As the first instruction given for the plaintiffs was expressed in such a way as to exclude this view of the case from the consideration of the jury, the judgment must be reversed.

The facts, as proved, did not, according to the recent decisions, constitute a partnership between the parties.

As this ease was commenced under the old system of practice, the rules of evidence, as they then existed, will prevail in ascertaining the competency of witnesses. To disqualify a witness, he must be legally entitled to payment out of the fund. A mere expectation of payment, however strong, if not amounting to a legal right, has been held insufficient to render a witness incompetent. (1 Greenl. 460.) This is said in reference to the deposition of Benoist.

Judge Ryland concurring,

the judgment is reversed, and the cause remanded.


author: Leonard, Judge, Scott, Judge.

text:
    McEvers, Respondent, v. Steamboat Sangamon, Appellant.
    1. A barge was hired of A. by a steamboat, and it was agreed in writing that on the giving of notice the harge should'be delivered up to A., “with the understanding that if froze up in the ice the sum above mentioned (eight dollars per day) is not to be paid, but only for the time the barge is in actual service, subject to his order, by giving notice one trip previous to leaving port, and is to be delivered in good order, the usual wear and tear excepted.” The barge was destroyed by the ice in the Mississippi, without fault on the part of the defendant. Held, that the steamboat was not liable on the contract for the non-delivery of the barge. Whether the steamboat assumed the obligation to return the barge at all events, and notwithstanding any overpowering force, is a question of intent, to he determined by a proper construction of the terms of the contract. (Scott, J., dissenting.)

      Appeal from St. Louis Circuit Court.

    This was an action brought by McEvers upon the following instrument of writing : “ This is to certify that I have hired of Mr. T. L. McEvers his barge called the ‘Lightfoot,’ for the sum of eight dollars per day, and I am to deliver it to him at Montezuma, he paying for the towing of the same at the rate of thirty dollars, with the understanding that, if froze up in the ice, the sum above mentioned is not to be paid, but only for the time the barge is in actual service, subject to his order, by giving notice one trip previous to leaving port, and is to be delivered in good order, the usual wear and tear excepted. St. Louis, December 20th, 1853. Steamboat Sangamon, L. A. Calvin, master, per O. N. Golding, clerk.”
    The breach assigned was the failure of defendant to deliver up the barge to plaintiff according to the terms of the contract. Upon the trial, evidence was offered on the part of defendant to show that the barge was lost by the breaking up of the ice in the Mississippi river, without any fault or negligence on the part of the officers or agents of defendant. This evidence was rejected, and, on the motion of plaintiff, the court gave the following instruction : “If the jury believe from the evidence that the agents of defendant hired the plaintiff’s barge to be used in connection with defendant in navigating the waters of this state, that the agents of defendant took possession of the barge for the above use, and that the barge was sunk and lost by the ice in the Mississippi river, while in possession of defendant or his agents, plaintiff is entitled to recover.”
    There was a verdict for plaintiff, and defendant brings the case here by appeal.

      Hudson & Thomas, for appellant.
    1. The agreement given in evidence by plaintiff, imposed upon defendant the same obligations tbe law imposes upon a bailee for hire. (Sto. on Bailm. § 33 and 36.) The agreement does not import an absolute agreement to return and. deliver up the barge at all events. The parties did not intend that the defendant should be made liable as an insurer. Inevitable' accident would relieve a bailee from the consequences of a failure to perform the agreement. (See The People v. Manning, 8 Cow. 297 ; Carpenter v. Stevens, 12 Wend. 589; The People v. Bartlett, 3 Hill, 570 ; 6 Mo. 823; 8 Mo. 33 ; 10 Mo. 568.)

      Reber, with whom were Hart & Jecko, for respondent.
    The court properly rejected the evidence tending to show that the* barge was destroyed by inevitable accident. (16 Mo. 484; Chitty on Con. 734.)
   Leonard, Judge,

delivered the opinion of the court.

The steamboat Sangamon hired the plaintiff’s barge (the contract being in writing) at eight dollars a day, excluding the time it might be frozen in the ice, to be returned to plaintiff at Montezuma at any time, upon reasonable previous notice, and “ delivered in good order, the usual wear and tear excepted.” The suit is for the non-delivery, pursuant to the contract; and one defence set up in the answer is, that the barge was destroyed by an overpowering force — the ice in the Mississippi river — without any fault on the part of the defendant. This defence was struck out upon the objection of the plaintiff, and proof to the same effect, offered by the defendant upon the trial, was excluded.

If there had been no obligation upon the boat for the return of the barge, other than what the law implied upon the bailment, from the transaction itself, this defence, it is admitted, would have been sufficient. But it is insisted that here the party imposed the duty upon himself by a special contract, and therefore took the risk of such casualties ; the distinction being between a duty imposed by law and one imposed by the parlies themselves. We are told that by the civil law, when a person enters into an obligation to do a particular thing (unless it be of the essence of the contract, that a risk is incurred on the one side or the other), and is prevented from doing it by accident or an overpowering force, there is no ground for claiming damages for the non-performance. (Henderson v. Stone, 1 Martin, 641.) The object of both the civil and common law, in the matter, is to ascertain the intention of the parties, and execute their contracts accordingly. IE it were the intention of the boat here to make itself responsible, in case the barge was destroyed without any fault, even by a natural force that could not be resisted, the matter relied upon would, of course, be no defence; but the question is, whether this was the intention. It is argued, however, that this is the interpretation our law gives to an undertaking for the performance of any particular act, and that the courts are bound to adhere to this construction, no matter what may be thought of the propriety of it, as a rule likely to carry into effect the real intention of parties. An examination of the cases, however, we think, will show that there is no such inexorable rule applicable indiscriminately to the construction of all special undertakings.

In Pollard v. Moffer, (1 Dall. 210,) the covenant was to deliver up the demised premises (a house in Philadelphia), at the end of the term, “in good repair,” and the British army had taken and held the city of Philadelphia until after the term had expired, and, during the time, taken possession of the house and committed the waste and destruction complained of. This was admitted as a good defence to an action for not returning the premises in good repair pursuant to the contract.

In Young v. Bruces, (5 Littell’s Rep. 324,) where there was a special contract to return a hired slave, the court of appeals in Kentucky decided that the death of the slave excused the non-delivery; following in this matter, the cases in Virginia. (Harris v. Nicholas, 5 Munf. 487.) In Perkens v. Reed, 8 Mo. 33, and Ellett v. Bobb, 6 Mo. 324, this court went still further and decided that when a hired slave ran away, without any fault on the part of the hirer, that the latter was excused, and this decision corresponds with the decisions in Kentucky upon the same matter (Keas v. Yervell, 2 Dana, 249) ; and the ground upon which the latter decisions are put is, “ that the casualty by which the slave is lost is a peril incident to the nature of such property, and, therefore, in contracts concerning it, that peril shall never be presumed to have been guarded against, unless so expressly stipulated.”

It is true the hirer could not prevent the death in the first class of cases, nor the escape in the other class; yet, if his contract embraced these risks, he was bound to pay for the loss. Both cases, therefore, go upon the ground that there is no such imperative rule of construction applicable to contracts of this description.

The question here then is, was this risk within the engagement of the defendant, so that, no matter how the loss occurred, the party is bound, and we think it was not. Here is a general undertaking to return the property in good order, and it has perished without any fault on the part of the defendant by a natural force that could not be resisted, and we are of opinion that an undertaking to assume such a risk ought to be special and express, and so clear as not to admit of any other construction. Such is not the case here.

The hirer was even excused from paying for the use of the barge, if it should be frozen'up ; and if the plaintiff had been asked whether he expected pay for it, ip case it should perish by the same overpowering force, can there be any doubt as to the answer he would have given ?

Judge Ryland concurring,

the judgment is reversed, and the cause remanded.

Scott, Judge.

When the law creates a duty and the party is disabled to perform it without any default in him, and he has no remedy over, the law will excuse him. But when the-party, by his own contract, creates a change or duty upon himself, he is bound to make it good, if he can, notwithstanding any accident by inevitable necessity; because he might have provided against it by his contract. This is a principle as well established in our law as any to be found within its folds. It has. prevailed too long and exercised its influence in too many ways, now to be overthrown without much inconvenience and the causing of many future difficulties. This principle is a manifestation of the spirit of the race for whom our noble system of law was moulded; a spirit of bold, self-reliance, which scorns to resort to government for protection against events, whose occurrence might be obviated by the exercise of ordinary vigilance. It is this spirit which distinguishes the common from the civil law : a spirit, too, which distinguishes the people that are governed by the two systems of law. Too great a reliance on government for protection in matters against which the exercise of the faculties with which man is endowed by nature may guard him, b.egets a spirit of dependence which is inconsistent with that freedom of thought and action which should animate a self-governing people.

It would be a display of useless research to attempt a reference to the many cases in which the principle in question has been asserted and maintained. The books are full of them, and I conceive that there is no authority in the courts to depart from the law as it has been invariably understood. There is nothing whatever to distinguish this case from the many others which have occurred in the course of the administration of our laws ; and if the principle is not adhered to in this instance, it must be regarded as overturned — an act to the performance of which the legislature is alone competent. There may be cases in which the application of the principle will effect complete justice between the parties. Who shall draw the line of distinction? Is not that the province of the law-maker ? It is always safer, in a government of laws, to have fixed rules for the interpretation of contracts, than that every thing should be left to the discretion or sense of justice of the judge. Too much is already left to the discretion of the judge in our law, and the occasions for the exercise of such discretion should not be multiplied.


text:
    Franklin, Plaintiff in Error, v. Stagg, Defendant in Error.
    X. A. having purchased certain lots in the city of St. Louis at an execution sale under judgments against E., brought suit against B. and also against 0., in whom the legal title to said lots stood, asking that the title of C. might be divested and transferred to A. on the ground that the said lots had been conveyed to C. with intent to defraud the creditors of B. (of whom A. was one), and were thus fraudulently held by C. To this suit both defendants appeared, and B., in his answer, denied the fraud alleged, denied ownership in himself, and asserted full ownership in C. The'court gave judgment for A., plaintiff, and by its decree vested the title to said lot in him free, and discharged of all claims in favor of either B. or C. Held, that this suit was a complete and final adjudication upon the title of B. to the lots in question, and that B. could not afterwards set up title thereto, either in his own behalf, or in behalf of his creditors, on the ground that A. acquired the property by making a fraudulent use of a judgment confessed by B. in his favor: the matter is res adjudicata.

      Error to St. Louis Land. Court.

    The facts are fully set forth in the opinion of the court.

      Munford, for plaintiff in error,
    cited State v. Morton, 18 Mo. 53 ; Wood v. Jackson, 8 Wend. 9; 2 Myl. & Cr. 602 ; 3 Edw. Ch. 20 ; 8 Page, 210.

      W. L. Williams and Clover & Richardson, for defendant in error.
   Ryland, Judge,

delivered the opinion of the court.

In November, 1849, Henry Stagg commenced his suit in the Circuit Court of St. Louis county against Joseph Fitch and Joseph F. Franklin. The plaintiff’s petition stated that in June, 1849, F. O. Day conveyed to Fitch lot 259 in Wright & Chambers’ Addition to St. Louis ; that said conveyance was without any consideration moving from Fitch ; was in fact without his knowledge ; was for the benefit of Franklin, and made for the purpose of defeating the collection of judgments, which had been rendered in the courts against him, one of which was in favor of the plaintiff; that in August, 1849, John G. Weld conveyed to Fitch another lot of ground in the city of St. Louis, being part of lot No. 282 ; that this conveyance was also without consideration from» Fitch — was intended for the use of Franklin and made to defraud his creditors ; that in November, 1848, said Franklin confessed judgment in favor of Fitch for $3014 ; that no such sum was due from him to Fitch ; 'that said judgment was confessed without the knowledge of Fitch and for the purpose of defrauding the creditors of Franklin; and if at the date of said judgment any sum whatever was due to Fitch, it had been paid in full prior to the conveyance by Day to Fitch. The dates and amounts of the several judgments, recovered by Franklin’s creditors' against him, were fully set forth. It was then stated that executions were regularly issued on judgments against Franklin, including the plaintiff’s judgment, were levied on the lots in question, and that the lots were sold by the sheriff of the county of St. Louis to the plaintiff, who received his deed therefor, on the 3d day of November, 1849 ; that the legal title still remained in Fitch ; and thereupon the plaintiff prayed that Fitch should be compelled to convey to him, or that the court would, |y its decree, pass the title to these lots to the plaintiff.

The answer of Franklin was filed in December, 1849. ‘It stated in substance that the conveyances by Day and Weld were not for his benefit; that he had no interest whatever in the properly, and fully denied the alleged intent to hinder or defraud his creditors. On the contrary, he asserted that Weld and Day were the legal and equitable owners of the property, and had, for a valuable consideration, at his instance, conveyed them to Fitch on account of a debt which he owed Fitch ; that said judgment was honestly confessed by him in favor of Fitch for a real debt; that he owed Fitch even a greater amount, and had no fraudulent motive in it; that the judgment in favor of the plaintiff was also confessed'by him, and was merely to secure the plaintiff against liabilities he was under for him (Franklin) ; and that at the time of the sheriff’s sale to the plaintiff, under said judgment and others, not over five hundred dollars were due on plaintiff’s judgment. The answer then proceeded to state that long previous to the plaintiff’s purchase, the lot conveyed by Weld to Fitch had been sold in good faith under judgment and execution against him to Weld, who held the sheriff’s deed.

The answer of Fitch, filed in April, 1850, set up, substantially, the same defences, and concluded with a denial that plaintiff had any right in equity to coerce the payment of his judgment at the date of his purchase at the sheriff’s sale.

On the issues made by these pleadings, the cause came to trial in February, 1858, and the finding was in favor of the plaintiff on all the material allegations in his petition, and therefore it was ordered, adjudged and decreed that the legal title to the said lots, pieces and parcels of land be and the same is hereby vested in the plaintiff (Henry Stagg), free and discharged of and from all claims of said, defendants or either of them — Joseph F. Tranklin being one.

The defendants took the necessary steps to obtain a review of the finding, but were overruled in the Circuit Court; they afterwards appealed and removed the record into this court, where errors were assigned and the cause argued and decided at the Mareh term, 1853, and the finding of the Circuit Court,- upon the evidence adduced at the trial, sustained and the judgment appealed from affirmed in all particulars. (Case reported 18 Mo. 299.) It is in this state of things that Joseph F. Frahklin,-who was defendant in the suit, the nature and result of which have just been'stated, commenced the .present action in the Land Court of St. Louis county, in which Stagg, who was plaintiff before, is made defendant.

The plaintiff in this present suit states - in his petition as follows : “ Plaintiff states that on the 8th day of May, 1848, the firm of Franklin & Perry drew a draft for $2000 on J. L. Franklin, of New York ; that to negotiate said draft, plaintiff got the defendant to endorse the same as an accommodation endorser'; that the same was sold to one Hayes. Plaintiff states that on the 15th day of April, 1848-, the firm of Franklin & Perry and the defendant made their joint promissory note for the sum of $3000 ; that said note was negotiated and the money raised on it, one half of which was taken and used by the defendant, and the other by plaintiff; that said note had four months to run, and that the same was eventually sold to H. Crittenden. Plaintiff states that on the 6th of July, 1848, plaintiff executed three notes for $500 each, one due in four, seven and nine months, and one other on the same day for $200; that said notes were given to said Stagg and discharged by plaintiff, except the one for $200, which was without a good and valuable consideration, and that the consideration for the said $200 note entirely failed.

Plaintiff states that not long after the indebtedness aforesaid was created, he became apprehensive of serious difficulties in his pecuniary affairs ; that to indemnify the defendant against any loss on account of his liabilities, at the request of defendant, he executed to him, on the 25th November, 1848, his certain promissory note for the sum of $5200 ; that the sole consideration of said nóte was to indemnify the defendant against the aforesaid debts ; that said note was due one day after date ; that the plaintiff, to indemnify the defendant, on the 29th Novvember last aforesaid, confessed in the Court of Common Pleas of St. Louis county, a judgment in .favor of the defendant for the sum of $5400, said sum being considered sufficient, to cover all costs, damages and expenses that might accrue on said liabilities. Plaintiff states that said judgment was confessed merely to give the defendant some security against said liabilities. Plaintiff states that on the day of the date of said judgment, the defendant executed to the plaintiff an agreement herewith filed, marked exhibit A, showing the object and purposes for which said note was given, and said judgment confessed as aforesaid.

“ Plaintiff' states that he discharged and took up said three notes of $500 each, and that said judgment, in consideration thereof, was-credited for said sum of $1500. Plaintiff states; that defendant had an execution issued on said judgment, ami in February, 1850, collected on the same $000 80 in cash. Plaintiff states that defendant took a transcript of said judgment and sent the same to Iowa, and had a tract of land attached as the property of the plaintiff, and sold the same, and purchased it for a sum greatly inadequate to its real value, and now claims to be the owner thereof ; that the said piece of land is worth about $2000. Plaintiff states that defendant issued an execution on said judgment, and had the same levied on two lots of ground in the county and city of St. Louis, state of Missouri, to-wit: A lot 80 feet front on Tenth and Eleventh streets, by 150 feet deep, a complete description of which will appear by reference to book R, No. 4, p. 276 and following, in the recorder’s office of St. Louis county ; second, a lot containing 18 feet front by 126 feet 8 inches in depth to an alley, it being so much of block No. 282 in said city, commencing at a point on the east line of Eleventh street, distant southwardly 25 feet from the north-east corner of said block ; thence south with said Eleventh street 18 feet; thence east and parallel with St. Charles street, 126 feet 3 inches to an alley ; thence north with said alley,' 18 feet; thende west 126 feet 3 inches to the place of beginning. Plaintiff states that on the 29th October, 1849, the sheriff of St. Louis county sold the said lots as the property of the plaintiff, and that the same were purchased by the defendant; that ho only gave for the first lot above described the sum of $600, and for the other the sum of 344; that a credit was entered on said execution for the sum of $575 ; that the balance of said sum of $634 was applied to other executions then in the hands of the sheriff against the plaintiff; that said balance of $59 was all that defendant paid in cash for said lots ; that the sheriff executed to him a deed, and that he now holds possession of them under it; that they are worth about $6000.

“Plaintiff states that the sale and purchase of said lots by the defendant as aforesaid is fraudulent and void, and if any title passed thereby he holds the same for the benefit of the creditors ; that said judgment was confessed to indemnify him against. Plaintiff states that before the defendant purchased any of the property sold as aforesaid, and before he collected said sum of $602 80 on said judgment against the plaintiff', he had taken up and discharged the three notes for $500 each, and that the consideration of the $200 note had entirely failed; that on the 25th March, 1849, plaintiff executed to defendant his two promissory notes, one for $554 16 and the other for $599 16, one due in six months, and the other in twelve months ; that said notes were given in consideration of a part of Franklin & Perry’s interest in the note for $3000, dated 15th April, 1848, and which had been endorsed to H. Crittenden ; that plaintiff had made an arrangement with said Crittenden to pay the balance of interest of Franklin & Perry in said note ; all of which will more fully appear by a receipt of the defendant herewith filed, marked exhibit B. Plaintiff states that before defendant had collected money on said execution and sold the property as aforesaid, he had obtained an extension of time on said note for $2000, dated 8th May, 1848, which was executed by Franklin & Perry and endorsed by defendant; that the same was endorsed to one Hayes, of Baltimore, and that the defendant had not paid any thing on the same ; that he had an arrangement with the holder thereof by which suit was to be brought in his name ; that judgment was rendered in his favor against Perry on the same; that if defendant ever paid any thing on said notes, it was after he had sold the property of the plaintiff and collected money on said judgment as aforesaid, and that what he has paid he has been enabled to do so by virtue of the property that he sold and the money collected on said judgment as aforesaid. Plaintiff states that after defendant got a judgment on said $2000 note against the said Perry, that in July and August, 1850, and April, 1852, defendant coerced payments of said Perry on said judgment, amounting to the sum of $2100. Plaintiff states that said sum of $2100, recovered from Perry, and the sum of $602 80 received in cash on said execution, and the real estate sold as aforesaid, worth about $8000, would make about $9702 80 that said defendant has realized on account of his liabilities that said judgment was confessed to secure-him against.

“ Plaintiff states that if said defendant has ever paid any thing on account of his liabilities as the endorser of Franklin & Perry on said debts, he is not advised as to what amount he has paid or to whom it was paid. He is informed and believes that if any thing has been paid, that it was only paid as the defendant received payment from said Perry, and as he coerced payment on said judgment against plaintiff; that a large amount of said debts, for which said judgment was confessed, still remains unpaid, the holder thereof having extended the same and given indulgence thereon. Plaintiff states that, with the interest that has accrued on the judgment that, he confessed in favor of the defendant, there yet remains an apparent unsatisfied balance of about $3000 on the same, for which the plaintiff is still liable to be further unjustly oppressed by the defendant.

“Now, the premises considered, the plaintiff asks that defendant may answer all the allegations of this petition to the extent of his knowledge, information or belief, and that an account be taken between plaintiff and defendant, and that said purchases, made as aforesaid, be. declared to be in trust for the benefit of the creditors, whose debts said judgment was confessed to indemnify the defendant (as the security o.f Franklin & Perry) against, and that the defendant be made to account for all the money that he received on said execution, and for the payments made him by said Perry, and that the property be resold, and after giving the defendant a credit for all that he has actually paid in cash, on account of his liabilities as the endorser of Franklin & Perry, if he has paid any thing for them, that the money be received on said execution and the payments made him by said Perry be applied to meet said payments ; and that if the same should not be sufficient, that then the proceeds of the property on a resale, or so much thereof be applied as will discharge what sums he may have actually paid as security as aforesaid, and the balance be applied to the payment of what may still be diie on the debts for which the defendant was the endorser of the plaintiff; and if there should still be a residue, that the sum be applied to the payment of a judgment in favor of Joseph Fitch against the plaintiff, for the sum of §8014, rendered in the 'Court of Common Pleas of St. Louis county, on the 2d day of November, 1848 ; that the two notes given by plaintiff to defendant, dated 23d November, 1849, amounting to $1153.38, be delivered up to this court to be cancelled ; that said judgment in favor of defendant against the plaintiff, for the sum of $5400, be annulled, and that the plaintiff be discharged from any further liability on the same ; and that said note for $200, dated 6th July, 1848, be delivered up to this court, to be cancelled ; and that the purchase by the defendant of said lots be decreed to be .void, and that the deeds therefor be delivered up to this court to be cancelled ; and finally, the plaintiff asks for such other and further relief and judgment as he may be entitled to in the premises.”

The defendant’s answer admits many of the plaintiff’s allegations as to the matters of account embraced in his petition, but denies that he held the property fraudulently as to the plaintiff’s creditors, and sets up and relies upon the proceedings and judgment in the former suit in bar of the relief prayed.

On the trial in the Land Court, the foregoing facts appeared in evidence, and the .finding of the court was against the plaintiff, and judgment rendered accordingly. The plaintiff now brings the case to this court by writ of error.

We are at a loss to perceive the principle on which we are called upon to reverse this judgment.' In the first place, there has been a solemn and final adjudication of the very question in issue. The record of the suit wherein Stagg was plaintiff and Fitch and Franklin defendants, given in evidence by Stagg in the present suit, must be regarded as a conclusive establishment of the facts that, by a contrivance between Fitch and Franklin, the property, in dispute was conveyed to Fitch in fraud of Franklin’s creditors ; that it was so held by Fitch, when purchased by Stagg under executions against Franklin ; and that, so far as Franklin and Fitch are concerned, all right, title and interest therein is vested in Stagg, free and clear of any claim on their part. This is the very least effect that can he assigned to the record. But it is in the face of this record that Franklin comes and prays that the property to which his title has been thus extinguished, shall .be adjudged to him. This cán not be imagined for a moment. But, in the second place, the plaintiff, it would seem, as if not entirely ignorant of the delicacy of his position (under all the circumstances) as plaintiff in a court of equity, bases his right to recover the property upon the ground that the facts mentioned in his petition are sufficient to constitute the defendant a trustee for his creditors. If this be so, and the right of the creditors are supposed to give a cause of action to this plaintiff, the question arises why it was not relied on in the former suit ? or how it has survived the judgment rendered in that cause ? It is to be observed, that when the plaintiff’s creditors were seeking to subject this very property to the payment of their demands, he disclaimed all interest in the property, and came forward as a witness and testified that it belonged to Fitch. And now, after an adjudication that the conveyance to Fitch was in fraud of his creditors, one of whom has purchased the property and recovered it by an action to which the plaintiff was a party, he brings a suit, the purpose of which'is to take the property away from the purchaser, and vest it in him as trustee for his creditors. When the creditors shall themselves apply to the court and make out a case for relief, it will be time enough to provide for them. And in such cases', it is the province of the court to select a person proper, in their opinion, to fill an office of trust and confidence. In the third place, if, as we have shown, the plaintiff can set up no right whatever to the lands in dispute, then there was no jurisdiction in the Land Court to authorize an examination of his account; and, of course, there can be none here. Upon the whole case, we are of opinion'that the judgment should be affirmed,

and the other judges concurring, it is so ordered.


author: Scott, Judge, Leonard, Judge.

text:
    Lee, Plaintiff in Error, v. Lindell and others, Defendants in Error.

      1. A widow’s dower is divested by a sale in partition during coverture, al though she is not joined with her husband as a party. (Leonard, J., dissenting.)

      Error to St. Louis Land Court.

    Petition by the widow of Elliott Lee for dower. The plaintiff was married to Lee in 1824, in St. Louis. He died in 1851, without issue. From 1825 to 1887, he was seized in fee as tenant in common with others of the land in which dower was claimed. In 1836, a petition was filed for a partition of the land among the .parties interested, according to their respective interests. The plaintiff was not a party to this suit, though her husband was. The proceedings resulted in a sale of the land under an order of court, to Jesse G. Lindell.
    A demurrer to the petition, in which the above facts appeared, was sustained by the Land Court.

      Hudson & Thomas, for plaintiff in error, in their brief,
    argued that a sale under a decree in partition did not divest the wife of one of the tenants in common of her dower in the land sold, where she was not a party to the proceeding. They cited 4 Kent’s Comm. 50, 51; 1 Story’s Equity, § 629, note 1 ; 1 Greenleaf’s Cruise, marginal p. 166, § 34, p. 174, 172, § 24, p. 156, § 19 ; 1 Hilliard on Real Property, 148 ; Parks v. Brooks, 16 Ala. 529 ; Shearer v. Ranger, 22 Pick. 447; Porter v. Noyes, 2 Maine Rep. 22 (Greenleaf); 8 Alabama, 373 ; R. O. 1835, tit. “ Dower,” § 2, “ Partition,” § 2, 3,14, 31; R. O. 1845, tit. “ Dower,” § 7 ; Denton v. Nancy, 8 Bar- ■ hour’s Rep. 618 ; 11 Barb. 152; Jackson and wife v. Edwards, 7 Page’s Ch. Rep. 406, 409 ; Matthews v. Matthews, 1 Edwards’ Oh. Rep. 576 ; Van Gelder v. Post, Edwards’ Ch. Rep. 577 ; 3 Paige’s Ch. Rep. 653 to 657 ; Combs v. Young, 4 Yerger, 218, 225, 229.

      R. M. Field and J. A. Kasson, for defendants in error,
    in a printed brief, argued the following point: A judicial sale of lands in partition, under the statute law of Missouri, during coverture, and by virtue of regular proceedings to which the husband is, and the wife is not a party, conveys a title to the purchaser, divested of the wife’s inchoate dower. (R. C. 1835, tit. “Partition,” § 2, 3, 22; Statutes of 1807, 1815, 1817 and 1825, concerning dower ; 11 Mo._Rep. 205; Melizet’s Appeal, 17 Penn. State Rep. 454-5; Riddick v. Walsh, 15 Mo. Rep. 538 ; Moore v. City of New York, 4 Sandf. 461; Wilson v. Davisson, 2 Rob’n Va.-Rep. 409.)

       This cause was submitted to the court and decided at the March term,, 1855. The report of it was prepared by Mr. S. A. Bennett, former reporter.

   Scott, Judge,

delivered the opinion of the court.

It is an incident to an estate held in common, that the tenant can be compelled to make partition. The estate must be acquired before dower can attach, and when it does attach to such an estate, it is taken subject to the contingency of a partition. (Potter v. Wheeler, 13 Mass. 506.) When it is established that a proceeding in partition is binding on the wife, and confines her right to dower in the lot assigned to her husband, it would seem to follow as a consequence, that she would be bound, however the proceedings might eventuate, whether in a portion of the land being allotted to her husband, or in any other result. The wife must be bound or not at the time the suit is instituted, and she being bound by it, when the legislature took up the subject and directed that, instead of a partition in kind, if it should be made to appear that it be most advantageous to the parties interested that the land should be sold and its proceeds divided amongst the co-tenants, and the land is accordingly sold and a purchaser pays his money for it; on no principle can the ground on which the suit was instituted be varied, and the wife be exempted from the binding influence of the judgment, and be favored with a right to dower in the land sold, when, by the proceedings, as originally began, they were binding on her. If this was a controversy between the husband and wife, for the proceeds of the sale, there would be some justice in her claim ; but as between her and the purchaser, who has intervened in a proceeding which was binding on her, her claim has no foundation in equity. It may be that as between the husband and wife, the law should have provided some security for her dower out of the proceeds of the sale, but that such failure should be visited on the purchaser, would be a great hardship. The omission to make it could, on no principle, vary the nature of the proceeding, and make that of no force which was before binding.

The eighth section of the act concerning dower, which provides that no judgment or decree confessed by or recovered against the husband, shall prejudice the wife’s right to dower, does not affect the present question. Partition is an incident to estates held in common. The making of partition among such tenants was provided for in the same code in which the section to which reference has been made is found. The binding influence of such procedure on the wife was known. The confining of the wife to the portion assigned her husband for her dower might prejudice the wife. A piece might have been allotted to him which would have been of no service to the wife for dower ; a lot wholly unimproved might have fallen to him. Suppose, in making partition, a sum of money was given to a husband for owelty of partition; would this give his wife a right to defeat the partition made and recover her dower 1 Suppose some of the shares are set off together, and others are sold and the proceeds distributed among the husbands, will their wives have right to dower in all the lands subject to partition, or will their rights be confined to the portion sold ? Innumerable difficulties attend this matter if we hold the proceedings in partition are not binding on married women. In a proceeding instituted to separate the rights of tenants in common, that each may have his own exclusively, would it not be strange that the law should require it to be done in such a way as might render necessary a recurrence to the same proceeding two or more times, according to the number of husbands, in order to effect the object, and thus, in making one partition, lay the foundation for many more, in relation to the very land divided; for each wife may sue for her dower in the land sold in partition upon the death of her husband, according to the argument.

We are aware that a contrary doctrine is held in some of the states, and the courts of New York held that the wife is not barred, unless she is made a party to the proceedings. There being no law requiring her to be made a party, it is not perceived how the arbitrary use of her name can impart validity to a proceeding which, without it, would not affect her. Nothing seems clearer than that if the law does not require a married woman to be a party to a proceeding, the making her one arbitrarily can not affect her rights. If the proceeding.is such as does not bind her, the use of her .name, without authority of law, can not produce such a consequence.

Under our law, the wife of the husband, who owns an interest in the land to be divided, is not required to be made a party in partition, no more than such wife is required to be plaintiff or defendant in an action of ejectment for lands claimed by the husband and in which she may have a right of dower. If the husband is competent alone to protect her interest in this action, why not in other actions in which her interests are the same ? The question has never been made in our courts, whether a judgment in good faith against a husband in an action of ejectment was not conclusive on the wife claiming dower in the same land. (Riddick v. Walsh, 15 Mo.)

Judge Ryland concurring,

the judgment will be affirmed.

Leonard, Judge.

I do not concur in this judgment. In my opinion, a partition sale does not divest the wife of her dower, unless she be made a party to the proceeding, in which event her contingent right may be secured upon the proceeds of the sale.


author: Scott, Judge.

text:
    Sire and wife, Plaintiff in Error, v. City of St. Louis, Defendant in Error.
    1. Lee v. Lindell, ante, p. 202, affirmed.

      Error to St. Louis Circuit Court.

   Scott, Judge.

This case is in all respects like that of Pelagie Lee v. Jesse G. Lindell and others, decided at the present term of the court.

Judge Ryland concurring,

the judgment will be affirmed.

(Leonard, J., dissenting.)