text:
    Keyser, survivor of Carlisle & Keyser, Respondent, v. Rawlings and others, Appellants.
    1. In an action of forcible entry and detainer, where the defence relied on is that the entry complained of was made after an abandonment of the premises by the plaintiffs; held, that evidence offered by defendants to the effect that previous to the alleged abandonment and the forcible entry complained of, the plaintiffs, then being tenants of one W. C. (claiming under whom the defendants made their entry) fraudulently attorned to one J. M., is inadmissible.
    2. Where, in an action of forcible entry and detainer, one of two co-plaintiffs, Who had, previous to the entry complained of, been in joint possession of the premises entered upon, dies, the survivor .may recover all the damages sustained by such forcible entry and detainer. .'
    3. Quere. Whether the estate of the deceased co-plaintiff is not entitled, in such case, to one half the sum recovered. .

      Jlppeal from St. Louis Court of Common Pleas.

    This case has heretofore been in this court. The case is' reported 18 Mo. 166. This was an action of forcible entry and detainer, brought before a justice of the peace, and removed by certiorari to the Circuit Court, and afterwards by change o£ venue to the St. Louis Court of Common Pleas. The complaint was by Carlisle & Keyser, as plaintiffs, against D. A. Rawlings, Thomas Rawlings, Isaac H. Sturgeon and Rowland Chambers, and stated, that on the 80th -August, 1849, plaintiffs were in the peaceable possession of block No. 288, of the city of St. Louis, and the same premises upon which the said Carlisle ■& Keyser had been carrying on a steam saw-mill, which had been burnt down a short time previous to the date aforesaid ; that on said date, while the said Carlisle & Keyser were péaceably possessed of said block, the defendants, with force, entered upon .and into said block and took forcible possession thereof, and ever since have and still do forcibly detain the same from said Carlisle & Keyser, and that by threats and terror they turned Carlisle & Keyser out, and forcibly detain the possession from them.
    After the change of venue to the Common Pleas, the death of Carlisle was suggested, and the suit continued to be prosecuted in the name of Keyser alone.
    On the trial, the plaintiff introduced evidence tending to prove that Carlisle & Keyser were partners in the brick-making and saw-milling business ; that their saw-milling business was carried on by them on block No. 288, the premises in controversy ; that they had been in possession of said premises for two or three years prior to the burning of the saw-mill on said block ; that said mill was burned down in August, 1849 ; that after the fire, said Carlisle & Keyser were in possession of said block, collecting the materials and lumber not burned, and the wreck of the mill, up to the evening before the alleged forcible entry, a short time after the fire p that on the morning succeeding said entry it was found that said block had been enclosed by a fence during the night time or very early in the morning ; that the fence was up the next morning after Carlisle & Keyser quit work the evening before, and that Keyser went up to the fence, shook it, and demanded possession; that D. A. Raw-lings, T. Rawlings and Rowland Chambers, defendants in this suit, were inside of the fence, together with other persons, with guns and pistols ; that the said defendants had employed the persons who built a shanty upon said premises, and put up a fence around the same, and refused -to vacate the same when possession was demanded, as above stated by the plaintiff, Keyser; that upon the said premises, when taken possession of, was the wreck of the mill and engines, which were after-wards hauled away.
    Defendants, on cross-examination of one of the plaintiffs’ witnesses, asked the following questions, to-wit: “ Were Childs and Emerson assignees of the tenancy of Hull,. Allen & Childs, and tenants of Wm. Chambers ? Did they all sell to Carlisle & Keyser their interest in the premises -as tenants of William Chambers in 1847 ? Did Carlisle & Keyser fraudently attorn to John Maguire after becoming tenants of William Chambers' in the premises in question ?” The plaintiffs objected to said questions, and the court refused to permit any of them to be put to the witness. Defendants duly excepted.
    Defendants also introduced evidence tending to prove that the fence was put up on the 30th of August; that Carlisle & Keyser had abandoned the premises after the burning of the saw- ■ mill and before the entry was made and the fence put up, and that at the time said fence was put up no one was in possession of the ground. Defendants also offered to prove, by reading the petition in a suit brought by John Maguire against Isaac H. Sturgeon, that said Maguire, in that suit, claimed to be the owner of-the wreck of the said saw-mill after it was burned down. The court excluded this evidence, and defendants duly excepted. Defendants also offered to prove that the premises in question were., in 1826, and from that time until the first day of May, 1848, in the possession of William Chambers ; that in June, 1845, Hall and Allen and Childs went into the saw-mill in question and put engines into and occupied the premises as tenants of Wm. Chambers ; that they continued as tenants of the premises until the spring of 1846, when Joshua J. Childs and Primus Emerson succeeded Hall, Allen and Emerson,-as tenants, of said property, under Wm. Chambers, and are the owners of engines in the saw-mill; that they fraudulently attempted to attorn to John Maguire, as their landlord, in the spring of 1847, about the 9th day of May; that they continued to recognize Wm. Chambers as their landlord up to the time that Carlisle & Keyser went into possession under John Maguire; that Carlisle & Keyser knew that Childs and Emerson were tenants of William Chambers, and that they had attempted to attorn .to John Maguire; that Childs and Emerson had made a private sale of the engines and fixtures of the saw-mill in question to John Maguire, and that John Maguire put Carlisle & Keyser into possession of the mill in the place of Childs and Emerson ; that Carlisle & Keyser were not owners of the engines and fixtures of the mill; and that John Maguire was, at the time of the fire, the owner of the engines, boilers and fixtures in said mill. The court, on objection made by plaintiff, refused to permit such proof to be given ; and defendants duly excepted.
    The court gave the following instructions, asked by plaintiffs : “1. If the jury believe from the evidence, that Carlisle & Keyser were in possession of the premises described in the complaint prior to and up to the time of the burning of the mill spoken of by the witnesses, and that Carlisle & Keyser continued in possession of said premises until the fence spoken of by the witnesses was put up ; and if the jury shall also believe from the evidence that the defendants, Daniel A. Rawlings, Thos. Rawlings and Rowland Chambers, or either of them, after the burning of said mill, took possession of said premises and employed or took upon said premises a large number of men, with guns and other deadly weapons for the purpose'of keeping possession of said premises, and that the men so taken on said premises, by threats or menaces of a violent character towards Keyser, or towards any of his agents and servants employed to labor on said premises, frightened said Carlisle & Keyser or their agents or servants out of possession, and detained and held the same ; if these facts appear from the evidence to the satisfaction of the ju'ry, they should find for the plaintiff, unless the defendants have shown in evidence to the satisfaction of the jury that Carlisle & Keyser had abandoned the possession of said premises before the defendants took possession of the same. 2. If, prior to the commencement of this suit, Car-lisle & Keyser were in the peaceable possession of the premises in dispute, by having thereon their property and servants and employees, engaged in any business of said C. & K., up to the-close of the day, and that said C. & K., their servants and employees, left the premises for the night, intending to return thereto in the morning to pursue such business of said C. & K. as they had at the said premises, but that in the meantime and before the return of O. & K., their agents and employees, the next morning, defendants, or either of them, with a large force of men, entered upon said premises and enclosed the same with a fence in the absence of said O. & K., their servants and employees, said defendants, intending by force and by the display of deadly weapons to take and hold possession of said premises and keep out the said C. & K., their servants and employees, from the possession thereof; that any one or more of said defendants who so entered upon and who kept and held the possession of said premises, and kept out said O. & K. by force and by the display of deadly weapons, is guilty of the forcible entry and detainer alleged. 8. In order to establish an abandonment of the premises in question by Carlisle & Keyser, it must appear from the evidence to the satisfaction of the jury, that Carlisle & Keyser actually left said premises with the design and intention not to further use, possess or occupy said premises. The mere declaration on their part of an intention to abandon said premises is not taken alone proof of an abandonment, but the jury must be satisfied from the evidence that such expressed intention was actually carried into effect by said Carlisle & Keyser, and that they left said premises with . the intention not to occupy the same again. Although the jury may believe from the evidence, that Carlisle & Keyser, or one of them, after the burning of the mill, declared their intention not to rebuild or carry on the milling business again, that declaration, unless accompanied or followed by actual abandonment, is not sufficient to show or establish an abandonment by Carlisle & Keyser of the premises in question. 4. Although it should appear in the case of any defendant that he was not actively engaged in making the forcible entry and detainer, as complained,of, yet, if the jury are satisfied from the evidence that such forcible entry and detainer was made in manner and form as alleged, and that such defendant was at the time aiding and abetting, by his counsel and advice, those who did make •said forcible entry and detainer, and that he did employ, hire and pay those who made the same, to make it, then such defendant is guilty as if he had actively participated in the making such forcible entry and detainer.”
    To the giving of these instructions defendants excepted. The court then, on its own motion, gave the following ; “ 6. If the jury believe from the evidence that any witness has knowingly testified falsely in regard to any material fact in this cause, then they are at liberty to disregard his testimony altogether. It is, however, the exclusive province of the jury to determine what weight should be given to the testimony of each witness, or to any part of his testimony. 7. If the jury find for the plaintiff, they can allow damages only for the premises in the possession of Carlisle & Keyser, and from which they were dispossessed by the defendants or either of them.” To the giving of which, defendants also duly excepted.
    The defendants then asked and the court gave the following : “1. If the jury believe from the evidence, that Carlisle & Keyser, immediately or within a week after the fire, abandoned the premises in question and declared their intention of never returning to said place, and that defendants, or some of them, entered in after such abandonment, then the plaintiff can not recover in this action for forcible entry and detainer, and the jury should find the defendants not guilty. 2. The declarations of Rufus Keyser, the plaintiff, are competent evidence to show abandonment in this cause, so as to bar the action of Keyser for forcible entry and detainer; and if the jury believe from the evidence, that Carlisle & Keyser had ceased to occupy and did not intend to return to said premises, or to have any thing more to do with them before the fence was erected, then the plaintiff can not recover and the jury will find the defendants not guilty. 3. If the jury believe from the evidence, that Car-lisle & Keyser had no other business and carried on no other business on said premises in question than that of running a saw-mill there ; that at the time of the fencing done in this case, the premises in question were vacant and unoccupied by any one for or in the employment of Carlisle & Keyser, and that said mill had been previously burnt; that Carlisle & Keyser, after the fire, and before the fencing, sold off all their logs on said premises, and their houses and wagons and wheels, and removed their lumber, and ceased to use and occupy or work, in person or by their hands, upon the said premises, and after the fire and before the fencing they ceased to occupy the said premises in any manner, and declared that they did not intend to go back there or have any more to do with the premises, and that C. & K. did not afterwards have any thing to do with the saw-milling business there or elsewhere, but carried on other and different business from that date ; these are circumstances from which the jury ,may find that C. & K. did abandon the said premises. 4. In order for the plaintiff to recover against the defendants, or either of them, it is necessary for the plaintiff to show by evidence, to the satisfaction of the jury, that the defendants, or either of them, were in some manner connected with the forcible entry or detainer ; that the entry or detainer were upon or against the actual possession of C. & K.; and if the plaintiff has failed to show these facts satisfactorily to the jury, then it is the duty of the jury to find the defendants not guilty. If Carlisle & Keyser were in possession of said premises the day previous to the fencing, and had left the same the night previous with the intention to return and occupy the same, then they were in actual .possession within the meaning of this instruction. 5. The plaintiff is required in this action, in order to recover against all of the defendants, to show that the defendants charged were in some way connected or acting together in the matters charged, and an entry by the defendants at different times, without any connection or joint design with each other, will not authorize a joint recovery against them, and the burden of showing the connection or joint acts of the defendants in the premises is upon the plaintiff.”
    The court refused the following, asked by defendants : “ 4. If the jury believe from the evidence that the witness, Matthews, has knowingly testified falsely that the fence was put up in the night, and also falsely in swearing that there was no fence on the premises when he left at night, and that there was a fence on the place on the next morning at day-light, or that the said witness has knowingly testified falsely in’ any other matter material in this cause, then the jury is required to disregard his testimony altogether ; for the rule of law is, that a witness proved to be false in one thing, is'to be deemed false in all things. 5. If the jury believe from the evidence that the witness for the plaintiff, Matthews, has knowingly testified falsely in regard to any material fact in this cause, then the jury is instructed that they are to disregard his testimony altogether. 6. If the jury believe from the evidence that Car-lisle & Keyser abandoned the said premises at any time, then the plaintiff’, is only entitled to recover damages, if the jury find for the plaintiff, for the period of time between the fencing and the day of abandonment. 7. This plaintiff is only entitled to claim in this action one half of the damages that may be found by the jury, if the jury find for the plaintiff. 8. This plaintiff can not recover in this action if the jury believe from the evidence that he abandoned the possession before the fence was erected : and if the said Keyser had really abandoned the premises before the fencing, he could not acquire any right to sue in this action by going to the fence and shaking it, or by" demanding .possession after the abandonment. 9. The plaintiff, if he recovers at all, can only recover damages for the premises C. & K. actually occupied, and plaintiff can not recover damages for the fencing of premises, or for including within the fence, that enclosed the mill, other premises on which the said Garlisle & Keyser had occasionally scattered logs for the purpose of a temporary easement until they could be sawed. The plaintiff is limited in his claim for damages to the premises actually occupied by C. & K., and fenced by defendants at the time of the fencing. 10. The action of forcible entry and detainer is a proceeding in the nature of a joint action, and the plaintiff can not recover against any one or more of the defendants unless he can recover against all of them, and the acquittal of one defendant is a bar to any further proceeding against the other defendants.”
    The jury found for the plaintiff, and the defendants bring the case here by appeal.

      B. A. Hill and Shepley, for appellants.
    1. The court below improperly rejected the testimony offered on the part of defendant of a fraudulent attornment on the part of Carlisle & Keyser to John Maguire, a stranger, when they entered into possession, by and under the tenants- of Wm. Chambers. The main ground of defence was that, after the fire, Carlisle & Keyser abandoned the premises, and, in the strongest terms, ex-presséd their intention of never returning there-again. In order to show that this intention, thus strongly expressed, was a fixed purpose of abandoning all claim of possession, the defendants proposed to show that Carlisle & Keyser originally took possession of their property with a fraudulent intent of ousting the real owner and person in possession, and retaining possession for John Maguire. - While the mill was in existence, as they paid no rent to the real landlord, they might very well find it to their interest to do this ; hut when the mill burned down, and they had not only no idea of rebuilding the mill, but no idea of continuing in the saw-milling business, then they had no motive any longer' to retain this land thus fraudulently for John Maguire. It was then a bare possession, without chance of profit, or motive for continuance. If, then, we had been permitted tb show that Carlisle & Keyser were mere tenants at sufferance, liable to be dispossessed at once; that all their hopes of gain were at an end ; it would have increased the probability of an abandonment of the premises by Carlisle & Keyser. 2. The court improperly rejected the evidence offered on the part of defendants, tending to prove thatthe-engines, &c., the wreck of the mill, belonged to John Maguire- and not to Carlisle & Keyser. This would have shown that, after the fire, there was nothing on the lot belonging to Carlisle & Keyser, and thus, with the other facts, have rendered the alleged abandonment more probable, and thus have conduced to prove the same. 3. The verdict and judgment were in favor of Keyser, who survived, for the whole amount of the damages, which the jury found had been sustained, when, in fact,-Keyser could only recover one half thereof. The instructión asked by defendants was therefore improperly refused. The complaint was in the names of Carlisle & Keyser for an injury to their joint possession as tenants in common. No intimation is given in the original complaint that Carlisle & Keyser were partners, or sued as such. No amendment has been, or can be made, and they stood precisely in the situation of any other tenants in common, bringing a suit jointly for an injury to their joint possession. (See Carlisle & Keyser v. Rawlings, 18 Mo. 166.) The fourth section of fifth article of act concerning “Justices’ Courts,” (R. O. 1845, p. 650,) does not apply to proceedings under the act of “Forcible Entry and Detainer.” This is a proceeding sui generis. The section above referred to was intended to apply only to the ordinary jurisdiction of justices’ courts, and has no application to the special jurisdiction conferred upon justices of the peace by the act “ Concerning Forcible Entry and Detainer.”

      Krum & Harding and Glover & Richardson, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

The only questions relied upon in argument, in this case, relate to the exclusion of the evidence offered by the defendants below in relation to the circumstances under which the plaintiff-took possession of the lot in controversy, and to the right of a surviving plaintiff in this proceeding to recover all the damages sustained, and we think there is nothing in either objection that requires us to reverse the judgment.

It is contrary to the fundamental principles of every system of civil law, to allow persons to enforce their own rights by strong hand. The law protects the possession of every one, no matter how acquired, from actual violence, and therefore even the true owner of land can not expel by force a wrongful possessor. The remedy provided by our law for such a wrong, is the summary proceeding by forcible entry and detainer, in which the relief afforded is a restitution o£ things to their former condition, by restoring the complaining party to the possession of which he has been deprived, and allowing him double compensation for the damages actually sustained. The principle upon which the remedy is given is stamped upon the face of the act in the emphatic declaration, that “ the merits of the title shall in nowise be inquired into.”

Here, it seems to have been admitted that the plaintiffs had been in possession, and the only question litigated at the trial was, whether the possession had been abandoned before the defendants entered. The rejected proof showing that it was originally taken by the plaintiffs against right and so held, was, it is insisted, proper evidence to aid the presumption afforded by the other proof in the cause, that the plaintiffs, when they left the lot at night, did so with the intention of not returning again, because, in point of law and morals, they ought not to have returned, and had no inducement to do so. To allow such proof however, we think, would be a palpable evasion of the law, and generally defeat its execution, and we' are clearly of opinion that it was properly excluded.

In relation to the other point, it may be remarked that here there was a joint possession, and this possession, without any reference to the title of the party, is the thing protected. The suit is for a wrong to this joint right, and the suit did not abate, as was decided when the case was here before (18 Mo. 166) by the death of one of the parties, but survived to the surviving plaintiff; and we now think that, upon principle, the survivor must recover all the damages sustained. The question, as to the right of the estate of the deceased co-plaintiff to one half, is a question between other parties. It is enough for the defendants here that this judgment will protect them.

The judgment, with the concurrence of the other judges, is affirmed.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Gorman, Plaintiff in Error, v. Sagner and others, Defendants in Error.
    1. An acceptance, by one having a mechanic’s lien'upon a building, of a deed of trust upon the same, to secure the payment, at a future day, of promissory notes given for the debt which gave rise to the lien, amounts to a waiver of the lien.

      Error to St. Louis Circuit Court.

      Scire facias to enforce a mechanic’s lien. Among other facts which it is unnecessary to state, it appeared upon the trial that the plaintiff, Gorman, had accepted from Sagner, for whom the work and labor that gave rise to the lien was done, and who was at that time owner of the building upon which the same was done, two promissory notes payable in ninety days and four months, and also a deed of trust upon said building to secure the payment of said notes. Billings, one of the defendants, claimed said building by purchase at sheriff’s sale, under a judgment upon a mechanic’s lien. On the trial, plaintiff offered to surrender the two notes of Sagner. The court ruled that plaintiff could not recover.

      Krum & Harding and Gray, for plaintiff in errror.
    1. The execution of the notes and the deed of trust to plaintiff by Sagner did not extinguish plaintiff’s lien. It was not an equitable but a legal lien, expressly given by statute, and would not be merged by a mortgage, deed of trust, or judgment. Nothing but payment or an express release would discharge it. (14 J. R. 404; 2 Browne, 297 ; 14 S. & R. 32; 1 Hals. Ch. 485 ; 5 Watts, 118 ; 2 Miles, 214 ; 6 B. Mon. 67 ; 2 Wheat. 390.) 2. No injustice would be done to- Billings by allowing plaintiff to recover ; for plaintiff’s lien was regularly filed in the Circuit Court, and suit was commenced on it, before Billings bought, and he bought therefore with full notice. He was bound to take notice of plaintiff’s lien claim from the filing of it.

      Knox & Kellogg, for respondent.
   Scott, Judge,

delivered the opinion of the court.

From the view we take of this case, it will not be necessary to determine the points of law raised on the trial; for if the plaintiff’s lien was extinguished, it follows as a consequence that he can not recover.

The record raises the question whether the giving of notes, payable at a future day, and a deed of trust to secure their payment on the property on which the lien exists, is a waiver of the mechanic’s lien for the debt secured by the notes and deed of trust. Did this question concern only the immediate parties to the deed, it would be a matter of little consequence how it was determined. But when the acts of individuals became the motive to the conduct of others, it is important that such acts should be made to bear their natural construction, so that deceit and imposition upon third persons may be prevented. When a mechanic’s lien exists for a debt, if the giving of a deed of trust to secure the payment at a future day of notes executed for that debt, when that deed covers the identical property covered by the lien, is not a waiver of the lien, it would be difficult to say what act by implication of law would constitute such a waiver. The notes being for the debt secured by the mechanic’s lien, and payable at a future day, that lien could not be enforced during the time the notes had to run; and on their becoming due, there-being a power in the trustees to sell the premises for their payment, no end would be attained by holding on to the mechanic’s lien. Why this should be done but for the purpose of discharging the lien and substituting another mode of satisfaction in its stead, it is difficult to imagine. Such conduct is entirely inconsistent with the idea of the continuance of the lien, and third persons who act upon the faith of such conduct should not be deceived and disappointed of their just expectations. If either party to the transaction .was overreached or was in error as to its consequences, that error can not be remedied at the expense of third persons.

The cases cited by the plaintiff have been examined, and they do not contradict any thing here said. Although there may be some distinction between an equitable lien and one expressly given by law, yet there-is nothing in the cases hostile to the idea that a lien conferred by statute may be extinguished by implication arising from the conduct of the parties. The strong feature in this case is, that the deed of trust was on the very property subject to the lien. Had it been on other property the case might have been different. Courts are inclined to regard securities as cumulative, when it can be done without violence to the rights of third persons.

From the view we have taken of the case, it can make no difference that the lien was filed when the defendant, Billings, became the purchaser. The deed of trust was also in existence.

The judgment will be affirmed,

the other judges concurring.


author: Leonard, Judge,

text:
    Clark & Lemmon, Defendants in Error, v. Brown and others, Plaintiffs in Error.
    X. Where a scire facias to enforce a mechanic’s lien is issued against the contractor who built the building against which the lien is claimed, and also against the owners thereof, and it appears on ihe trial that plaintiffs had not given the notice of the claim of lien to plaintiffs within the time required by statute, the owners, however, not contesting in their answer the validity of the lien on the ground of the want of the requisite thirty days’ notice, and not excepting to any act of the court during the progress of the trial, and making no motion in-arrest of judgment or for a new trial; held,' that the contractor can not be permitted to attack the validity of the lien on the ground of a want of timely notice, though he may contest the plaintiffs’ demand, so far as the validity and extent of the debt is concerned.

      Error to St. Louis Circuit Court.

      Scire facias to enforce a mechanic’s lien under the St. Louis mechanics’ lien act of February, 1848. The scire facias issued against Brown, the contractor for the erection of the building upon which a lien is claimed to exist, and Scarritt & Mason, owners thereof. Scarritt & Mason, in their answer, “ admit that they received notice of plaintiffs’ claim on the 22d day of July, 1852.” “ They pray the court to protect them in any judgment that may be rendered against the said Brown or the said building.” It is not alleged in this answer, that the notice given was not given within the proper time. Brown filed a separate answer. It was shown on the trial that the notice of the claim of lien was given to Scarritt & Mason more than thirty days after the accrual of the indebtedness for which the lien is claimed. In the statement of the demand of plaintiffs, filed in the Circuit Court,' the building upon which the lien was claimed was described as follows : ‘£ A certain four story brick warehouse, situated between Second and Third streets, and between Yine street and Washington avenue, on the south side of said Washington avenue.” On the trial, plaintiffs were permitted to amend their scire facias by inserting the following allegation : “ The said Wm. Gr. Clark and Andrew Lemmon having given to the said owners notice of their intention to hold the said warehouse for said demand.” Scarrett & Mason assented to this amendment. Brown demurred to the amended scire facias ; the demurrer was overruled. The record shows that defendant, Brown, alone excepted to the action of the court below in receiving evidence objected to, in refusing instructions, &c. The jury gave a verdict for plaintiffs.

      Barrett, for plaintiffs in error.
    The court erred in permitting the amendment of the scire facias. Such a writ can not be amended by inserting any thing not in the record upon which it is founded. There was no notice given to' the owners of the building within thirty days after the accrual of the indebtedness, and no copy of this notice was filed with the lien. (Sess. Acts, 1842, p. 83.) The description was not good. (Ib. p. 84, §4.)

      Polk, for defendants in error.
    Scarrett & Mason, the owners of the building, do not object to the sufficiency or timeliness of the notice of the lien, or of the lien itself. The statute provides for giving notice to the owner for his benefit and not for the benefit of the contractor. The contractor has nothing to do with the matter of giving notice to the owner, and should not be permitted to raise objection on that score. It is Brown who makes all the objections in this case.
   Leonard, Judge,

delivered the opinion of the court.

In order to constitute a valid lien in favor of a material man under a contract, not with the owner, but with the contractor, pursuant to the St. Louis mechanics’ lien act of February, 1843, it is essential that the party who desires to acquire the lien should give notice of his intention to the owner within thirty days after the indebtedness accrued, or the .completion of the building or improvements. If, however, the owner or his agent can not be found, a written notice may be placed, as a substitute for the personal notice, upon some conspicuous part of the building, and a copy filed in the proper office with the lien. Of course this written notice, which is allowed in case of the party whose duty it is to give notice, must be affixed to the building within the same time prescribed for personal notice. It ié suggested in the present writ of scire facias^ that the plaintiff had notified the defendants of his intention to fix a lien upon the building, but it is not averred or shown that it was given within the required time, or in what manner, whether personally or constructively — whether by delivering the notice to the party, or affixing it upon the building, and filing a copy in the clerk’s office with the claim for the lien. The notice, however, in one form or the other, .within the required time, is manifestly essential to create a valid lien against the building, where the materials are furnished or the work done under a contract with any person other than the owner, and the suggestions of the writ would seem to be insufficient to warrant us in imposing this debt as a lien upon the building.

But the difficulty is that, so far as Brown, the contractor, is concerned, this is a part of the case in which he has no interest, and the owners, the only parties really interested in it, make no objection. It is true, both contractors and owners may be and probably are proper parties to the scire facias — the contractor, because he is interested in the question of indebtedness, being bound to indemnify the owner against this charge upon his property — and the owner, because his property is thereby subjected to the payment of the debt, his interest extending to both debt and lien, as the latter involves the former. It is true that all these parties bring the case here, and join in the assignment of errors ; but the owners do not in' their answer expressly contest the lien on the ground of the want of the thirty days’ notice, nor do they except to any act of the court during the progress of the trial, and they have neither moved for a new trial or in arrest of judgment, and, we presume, do not in fact complain here of the alleged error.

The points, too, made by Brown, that we consider of any weight, are confined exclusively to matters affecting the validity of the lien, and do not touch the extent or validity of the debt; and the judgment is a special one against the building only, and not against the property or person of Brown, and can not affect his interest in any particular, that we can see. It would probably conclude him in a subsequent suit by the owners against him for indemnity, as to the validity and extent of the debt, and so far he may unquestionably contest the plaintiff’s demand ; but we see no reason why he should be allowed to go further and call in question things in which, so far as he shows, he has no interest.- The judgment is affirmed.


author:
Ryland, Judge,
      Scott, Judge.

text:
    Patrick & others, Appellants, v. Ballentine & others, Respondents.
    1. Under § 3 of act of February 24,1843, (see Sess. Acts, 184?, p. 83,) which provided that "every person who wishes to avail himself of the benefit of the preceding sections, shall give notice to the owner, owners, or agent, within thirty days after the indebtedness accrued, or the completion of the building or improvement,” &c.; held, that one who gives notice of his claim of lien for materials furnished, more than thirty days after the indebtedness •for such materials accrues, has lost his lien by his delay, although such notice may have been given within thirty days after the completion of the buildings. (Scott, J., dissenting.)

      Appeal from, St. Louis Land Court.

    The facts of this case fully appear in the opinion of the court.

      Hudson & Thomas, for appellants.
    1. The date of the last item in the account filed, is the date of the accruing of the accounts. Although this statute of February 24, 1843, provided an extraordinary remedy, it should be liberally construed. The notice of lien may be given either within thirty days after thé debt accrues, or thirty days after the completion of the building. The creditor has his election.

      Glover & Richardson, for respondent.
    l..This is wholly a statutory remedy. It was never intended by the law that the owner should pay his contractor at his peril, or withhold all payments until thirty days after the completion of the building; for, in many instances, several years are required to complete a house ; and it would be paralyzing to the spirit of improvement if the owners of buildings were compelled, by a judicial construction of this law, to withhold all payments to their employees until their work is finished. It is for the encouragement of mechanics that contractors should be paid during the progress of their work; but if it be decided that a sub-contractor for work or the material man can withhold notice to the owner, no matter when the demand accrues, until the building is completed, then every owner, in self-defence, will withhold all payment until thirty days after the building is completed. The true construction to be given to this section is this : if the indebtedness accrues before the completion of the building, notice must he given to the owner within thirty days after such accrual; and if it does not accrue until the completion of the building, then within thirty days'thereafter. The lien is a mere incident of the debt, and, if the position taken by appellants is maintained, cases may occur where the sub-contractor would be defeated in an ordinary' action against the contractor, by the' statute of limitations, but would escape the operation of that statute by bringing himself within the lien law, and be rewarded for his negligence by making his debt out of the property of another. 2. Within the meaning of the act, the indebtedness accrued on the date of the last item of the account. (9 Mo. 558, 653 ; 12 Mo. 477 ; 16 Mo. 266.)
   Ryland, Judge,

delivered the opinion of the court.

This case arises under the mechanics’ lien law, for the county arid city of St. Louis, passed by the legislature in February, 1848. (Sess. Acts, 1842-3, p. 83.)

The plaintiffs filed their statement and account for materials furnished in the office of the clerk of the Land Court of St. Louis county, on the 3d of September, 1853. The account contains a particular statement of each item in it, the date of it, the character of the item, and the price. The first item was furnished and is dated March 11th, and the last item May 28th. The year is not named in the account, but it is obvious that it was 1853 from what appears on the record. The notice of this account, in proper form, was served on the defendant, Ballentine, on the 8th July, 1853, more than thirty days after the last item of the account had been furnished. The account was for materials furnished the defendants, Black and Brakes, for building a house for the defendant, Ballentine. The account for the lumber was closed on the 28th 'May; the indebtedness for the materials furnished accrued on that day.

On the trial of the scire facias, the plaintiffs offered to prove the correctness of their account; the furnishing of the items mentioned ; the price at which they were furnished and delivered to the contractors on said building before the completion of the same, and that the materials were used in, upon and about the erection and construction of said building, and that the notice mentioned was duly served on defendants within thirty days after the completion of said building. The defendants objected to this evidence, and the court excluded it. The plaintiffs excepted, and then suffered a nonsuit, with leave to move to set the same aside. This motion being made and overruled, the case is brought here by appeal.

The question here is, was this evidence properly excluded ? This depends upon the construction of the third section of the act before mentioned, which reads as follows : § 3. And be it further enacted, that every person who wishes to avail himself of the benefit of the preceding sections, shall give notice to the owner, owners or agent, within thirty days after the indebtedness accrued, or the completion of the building or improvement, provided they can be found; and in case they can not be found, then a notice shall be placed upon a conspicuous part of the building or improvements,-that there is such an amount due thereon, and that he or- they intend to hold the said building or improvements until the true sum due is paid ; and a copy thereof shall be filed with the lien ; but the above limit, in regard to notice, shall not extend to persons having contracts with the owner, owners or agent.” Does this section allow the material or lumber merchant, who contracts to furnish the contractor of the work with materials, thirty days after the building or improvements are completed, or thirty days after the indebtedness accrues to him, without regard to the completion of the work on the building or improvement ? Every person who wishes to avail himself of the benefits of the preceding sections, shall give notice to the owner, owners or agent, within thirty days after the indebtedness accrued, or the completion of the building or improvement. Now what is the meaning of this sentence ? Has the party furnishing the materials to the contractor the right to give his notice within thirty days after his debt for tho materials furnished has accrued? and has he the right also to lie by until the building is completed and paid for by the owner, and then come forward within thirty days after such completion, give his notice, and affix his lien upon the building for the materials furnished, and subject the owner to a second payment for the materials ?

The act was for the benefit of “ every mechanic, artisan, workman or other person doing or performing any work upon or furnishing any materials for buildings or other improvements, or for repairing the same” — not embracing the contractors of tho work only, but all workmen engaged by such contractors and doing work bn such buildings and improvements. A contractor was thereby prevented from drawing all his pay for the work and then failing to pay his laborers or his lumber merchants. These lumber merchants could give notice within thirty days from the accrual of the indebtedness to them, to the owners of the buildings or improvements, and not wait for the completion. But there might be a class of workmen, or artisans, or others, doing or performing work upon or about such buildings or improvements, whose debts might not become due until the completion of the buildings or improvements ; the aecfual of the debts of all such as took place on the completion oE such buildings or improvements, must be reckoned from such completion, and consequently the notice of these debts must be given within thirty days from the completion of the buildings or improvements.

The contractor who makes the bargain to do the work is not limited to the thirty days in giving his notice. Why so ? Because the owner or agent is not liable to be called on by him, for either work or materials furnished, otherwise than in pursuance of his contract. This contract is known to the owner or agent; they know whether there is any thing due the contractor on it or not, and are not liable to be deceived or imposed upon on account of it.

But the thirty days’ notice ús a limitation upon the demands of others. And, according to our view and interpretation of this statute, the persons furnishing the materials are not allowed to wait until the completion of the buildings or improvements, and within thirty days from the event give their notice. This act was for their benefit among others ; but when they can obtain this benefit by one construction, and, at the same time, cause no injury or harm to be done thereby to the owners, that construction should be favored.

Whenever the'indebtedness accrues to the persons mentioned in this act, within thirty days thereafter they shall give the notice, if they wish to obtain its benefit. The legislature made the two periods from which the thirty days began to run, in order to embrace every reasonable demand. One period was the accrual of the indebtedness. The other was the completion of the buildings or improvements. No claim should be a lien unless the creditor gavé the notice within thirty days after the buildings or improvements were completed. That was the utmost limit for any demand to be made a lien. None should go beyond that. But all were not allowed to wait that long. Whenever the debt was due — whenever the work or labor had been done, and the indebtedness for such was due or had accrued — whenever the materials had been furnished and the payment therefor could be demanded, then', in all such cases, the notice must be given within thirty days thereafter, or such debts could not be liens on the buildings or improvements. The persons who furnish materials know when their demands become due and payable. Then, within thirty days, let them give the owners notice, and thereby save the owners from paying the contractors for these very materials, which the furnishers may seek to have fastened on the buildings as a lien. Artisans, laborers and others know when their wages become due ; let them give the notice within the thirty days, and thereby save the owners from paying a contractor who might absorb all and leave his workmen nothing.

The act must be construed so as to render the greatest amount of benefit to those for whose interests it was made, and, at the same time, to save from injury the other class of persons upon which it operates, as far as practicable.

In this case, then, the indebtedness accruing on 28th May, and the notice not being given until 8th July following, the thirty days had elapsed and the notice was not in time to affix the debt as a lien on the buildings or improvements of the defendant, Ballentine.

I confess we had some perplexity in construing this statute. But we conclude that the legislature did not 'intend to fix the running of the thirty days for the notice at any one of two periods for the same debt; that is, the notice should be given within thirty days from the accrual of the debt or from some other event. But that they meant to place the completion of the building and the accrual of the indebtedness as two distinct periods — separate events, from one or the other of which, accordingly as the facts exist, the thirty days should commence running. Any merchant, therefore, furnishing materials to a contractor for a building or improvement, has the right to give the owner notice of his debt from the day of the indebtedness becoming due; any laborer for his work, from the day his wages become due: not only have they the right, but it is their duty to do so, if they wish the benefit of this statute.

The judgment is therefore affirmed,

Judge Leonard concurring.

Scott, Judge.

This was a proceeding under the act of the 24th February, 1843, entitled “An act for the better security of mechanics and others erecting buildings, or furnishing materials for the same, in the city and county o'f St. Louis.” The only question involved in the record is,"whether the plaintiffs, not having given notice to the owner of thebuilding within thirty days after the indebtedness for the materials accrued, are entitled to recover.

The third section of the act above referred to, prescribes that “ Every person who wishes to avail himself of the preceding sections, shall give notice to the owner, owners or agent within thirty days after the indebtedness accrued, or the completion of the building or improvement.” . -

It was maintained on the part of the defendants, that this clause of the section should be so construed as to require all indebtedness accruing before the completion of the building or improvement, to be notified to the owner, within thirty days after it was incurred, and all indebtedness incurred at the completion of the building, to be notified within the same time, so that the notice required by law should, in all cases, be given within thirty days after any debt was created, for materials furnished or labor bestowed on the building. This, no doubt, would be the safest construction for the owner, and if the interpretation of the statute could only operate prospectively, there would be no hardship in adopting it. But as any construction it may receive must affect past transactions, I do not feel myself at liberty to depart from the ordinary rules of interpretation, and thereby defeat the just expectations which were founded on the words of the law. Where the words of a statute are of a doubtful moaning, courts will always adopt such a construction as will produce the least inconvenience ; but when the language of a law is plain, the duty of the courts is to follow its direction. The adoption of the interpretation contended for by the defendants, would’defeat a settled rule of the construction which requires that all the .words of a statute should have some effect, where it is possible. Now, if we hold that the meaning of the law is that notice should in all cases bo given within thirty days after any indebtedness has been created, we deprive of all force and effect the words, after the completion of the building or improvement.

The mischiefs of the contrary construction are more imaginary than real. Persons whose necessities compel them to labor for a livelihood, are not apt to be too indulgent to those who employ them, or buy their materials. Their wages are necessary for their support, and there is no danger that the owners of buildings will sustain any injury by their remissness in collecting them. In my opinion, the judgment should be reversed.


text:
    Smith, Plaintiff in Error, v. Meegan, Defendant in Error.
    2. A bailee, who has a boat in charge for the purpose of repairing it, is bound to use ordinary diligence in its preservation, and is liable for any damage occasioned by launching the boat into the river at a time and under circumstances of great danger which ought to have been foreseen, and which result in the destruction of the boat, and that, too, although the actual destruction of the boat may not take place until about twelve days after the launching, by the breaking up of the ice.

      Error to St. Louis Court of Common Pleas.

    Demurrer to a petition. The petition is as follows :
    Plaintiff states that said defendant, Meegan, in the month of December, 1853, at the request of plaintiff, undertook to make certain repairs upon the steamboat Asia, then the property of plaintiff, of the value of $11,000, and, for that purpose, it became necessary to, and defendant did, by his servants and agents, haul said boat out of the Mississippi river upon a certain marine railway, commonly called “ The Marine Railway,” on the bank of the Mississippi river, in the upper part of the city of St. Louis, said railway then being in the possession and use of said defendant, and there made certain repairs upon said boat. Plaintiff further states, that on the 19th day of January, 1851, said boat then being on said railway, and the said river fuli'of floating ice, said defendant, by his agents and servants, undertook, in the afternoon of said day, to launch said boat into the river, it being exceedingly dangerous then to do so; in consequence whereof, plaintiff objected and remonstrated against their so doing; nevertheless, the agents and servants of defendant persisted therein, and some time after dark of said day, placed said boat off of said railway into the said river.
    Plaintiff avers that it was the regular business of defendant to make- repairs upon steamboats at said railways, and that having undertaken to make repairs upon said steamboat Asia, and having taken the same out of the river upon said railways, for that purpose, as was necessary, it became and was the duty of the defendant to keep said boat upon said railway, after such repairs were made, until she could be launched without putting her in imminent peril and danger of destruction from the then condition of the river. Plaintiff states that said river, at and near the place aforesaid, was rock-bound, affording no safe harbor for steamboats in time of ice; that the ice was then running so thick as to render it impossible for said boat to escape to a safe harbor; that it was then probable and almost certain that the river would close that night, and impound said boat, which, in fact, it did so, leaving no chance for escape — leaving said boat in imminent peril from the breaking up of the ice afterwards, by which, on or about the first February, 185J, she was wrecked and destroyed. Plaintiff" avers that said boat might have remained in safety on said railway until after the breaking up of the ice as aforesaid, and then launched in safety ; that her being launched in time'and manner as aforesaid, and placed, by the act of the agents and servants of defendant, in peril, from which, she could not be removed, was the cause of her destruction. Plaintiff avers that he used all reasonable means in his power for the safety, of said boat, before she was wrecked, and to save the wreck; and that what was saved of the wreck, after due diligence, was only of the value of one thousand three hundred and ninety dollars.
    Plaintiff avers that, from the time of launching said boat as aforesaid, until her destruction, there was no time when she could, by proper diligence on the part of the plaintiff, have been removed to a place of safety ; that she was placed in immediate danger of destruction, by the acts of defendant’s agents and servants, the moment she reached the water, and that the danger continued at all times imminent up to the time of her destruction; that the signs and circumstances, at the time of launching her, were such as to forewarn and apprise any prudent man of the impending danger, and the consequences which did ensue might have been naturally expected from thus launching said boat at the time. Plaintiff avers that said loss happened without any fault on his part, and that thereby ho has sustained damage to the amount of six thousand six hundred and ten dollars, for which he asks judgment against defendant, and for his costs and for interest from the commencement of this suit.
    To this petition the defendant demurred, and for causes of demurrer assigned the following: 1. The said petition does not state facts sufficient to constitute a cause of action. 2. It is matter of law that said defendant was not bound, by virtue of his office as owner of said railway, to keep vessels thereon after the repairs to be made thereon were finished. 3. It appears from the statements of the petition that the loss complained of'was the result of atmospheric changes occurring after the said boat was launched, and it also appears that the launching of said boat did not expose her to danger and cause her loss, but that the loss alleged in the petition arose (according to the statements in the petition) from events which it was impossible to foresee or provide against. 4. It appears that said loss arose from causes the operation of which was suspended for twelve days after said launching, and that then the said causes were put. into activity by influences beyond the control of the defendant. 5. It is a matter of law that there was no such duty (according to the facts stated in the petition) as plaintiff has in his petition supposed, whereby defendant was bound to keep said boat on the marine railway after her repairs were completed. 6. It appears from the petition that the loss complained of was a remote and not a proximate result of any act wherewith the defendant is charged. 7. It does not appear from said petition that plaintiff offered to pay or compensate defendant for allowing the said steamboat to remain on the railway of said defendant after the completion of her repairs. 8. It sufficiently appears from said petition that said boat was not put into the water from off of. said marine railway until the contract of said defendant (if any) with said plaintiff, in respect thereof, was fully performed.
    The court gave judgment on the demurrer for the defendant. The plaintiff brings the case here by writ of errror.

      B. A. Hill, for plaintiff in error.
    1. There was a clear case of loss by the negligence of defendant made out, and it was error to decide as a matter of law that the loss was not caused by the negligence of the defendant. This was a matter of fact for the jury. The issue was one of fact. ( See 4 McCord, 220 ; Story’s Bail. § 429, 15 ; 1 Camp. 138 ; 4 Barn. & Aid. 21, 36, 41; 5 id. 342; 1 Stark. 238.)

      Gantt and Hudson & Thomas, for defendant in error.
    1. The damage here was too remote. The boat lived uninjured at least twelve days amidst the perils in which it is alleged it was placed by the defendant; and when the loss - occurred, it was caused by atmospheric changes taking place subsequent to the act of defendant. The law would hold the defendant responsible only for such loss or damage as could have been foreseen at the time the boat was launched, and which must have been the natural and proximate result of such launching. (Seel Chit. PI. 371, 441; 1 Dow’s R. 207; Sedgwick on Dam. 70, 75, 80.) 2. It was no part of the contract that the boat should remain on the ways after it was repaired, nor is any custom or usage to that effect alleged.
   Leonard, Judge,

delivered the opinion of the court.

The defendant was bound to use at least ordinary care for the preservation of the plaintiff’s boat, and if he launched it into the river at a time and under circumstances of great danger, which ought to have been foreseen, and which resulted in the destruction of the boat, notwithstanding the use of all proper care on the plaintiff’s part, he must bear the loss occasioned by his own improper conduct. This is the case substantially presented by the petition, and the judgment must therefore be reversed, and the cause remanded, in order that the matter may be tried upon the proof.

Judgment reversed, and cause remanded.


text:
    Bennett, Appellant, v. Belt’s Administrator, Respondent.
    1. A. owning the legal title to a steamboat, as to one half of which B. is the beneficial owner, made a bill of sale of one half of the said boat to C. j held, in a suit by B. against C.’s administrator, for a balance of the purchase money remaining due, that evidence is admissible, to show that the bill of sale was made by A. at the request of B., and was intended by the parties to convey the interest of B.

      Appeal from St. Louis Circuit Court.

    This case came originally from the Probate Court of St. Louis county, whence it was taken by appeal to the Circuit Court. Anthony Bennett, appellant, presented to the Probate Court, for allowance, against the estate of defendant’s intestate, a claim for a balance of $699 48, alleged to be due to the said Bennett upon purchase of one half of the steamboat Saluda from the said Bennett. In the account presented to the Probate Court, the consideration of the said purchase was set down as being $1532 43, upon which a credit of $833 was allowed.

      Upon the trial of this case in the Circuit Court, plaintiff gave in evidence the deposition o£ Peter Conrad, who testified that in March, 1852, he executed a bill of sale to Eraneis T. Belt, defendant’s intestate, for a part of the steamboat Saluda; that before Belt bought, witness, Conrad, and Anthony Bennett, (appellant,) were owners of said boat in equal moieties thereof; that the whole title stood in witness’ name for the convenience of Mr. Bennett; that Belt, after his purchase, paid part of the purchase money, to-wit, $833, by lifting a note made by Bennett and Conrad for that amount.
    Certain questions and answers contained in Conrad’s deposition, to the effect that Belt purchased his interest in the Saluda from Bennett, through Conrad; that Bennett was the owner of the one-half interest transferred by the bill of sale executed by Conrad ; that the consideration was $1200 and one half the debts which the boat owed at the time of the purchase, the whole of which amounted to between $600 and $700 — not to exceed the latter sum ; that Belt never paid any part of the debts of the boat, assumed by him, — were stricken out on the motion of defendant, to which plaintiff excepted.
    Defendant then gave in evidence the bill of sale dated March 22,1852. It was an ordinary bill of sale of a steamboat, executed by Conrad, transfering to Belt one half of the steamboat Saluda in consideration of $1200. This bill of sale was under seal, and contained a covenant of warranty on the part of the said Conrad against all lawful claims and demands against said one half of said boat Saluda. At the foot of the bill of sale was the following in writing, and signed by the plaintiff, Bennett: “ I hereby certify and guarantee the validity of the foregoing sale, and do hereby quit claim to any interest I may have had in said steamboat Saluda — day and date above written. [Signed] Anthony Bennett.”
    In rebuttal, plaintiffs introduced one Simmons, who testified that when Belt bought an interest ip the Saluda, he took up a note for $833, given by Conrad and Bennett to one Page, a former owner of said boat, from whom said Conrad and Bennett had purchased her. The balance of what Belt was to pay was to be applied 'on another note given to said Page by Conrad and Bennett, at the time of their purchase.
    The cause was submitted to the court, a jury .being waived, and judgment was given for the defendant.

      Krum & Harding, for appellant.

      T. T. Gantt, for respondent.
    1. The action should have been in the name of Oonrad and Bennett.
   Leonard, Judge,

delivered the opinion of the court.

The plaintiff’s case assumes that he was the beneficial owner of one half of the boat, the legal title to which stood in the name of Conrad, the other part owner, and that he made a verbal sale of his half to Belt, the defendant’s intestate, for which the latter was to pay twelve hundred dollars and one half of the debts ; and that, in order to execute the contract on his part, Conrad, at his instance, made a written transfer to Belt of half of the boat. This is substantially the proof offered, and the court excluded the main part of it upon the ground that the written transfer of the title concluded the matter, and that it appeared by that instrument that the sale was made by Conrad and not by Bennett, and of course that the contract to pay was with him and not with the plaintiff. This, it seems to us, is a total misapplication of- that very wise rule of law that forbids parties who have adopted a written memorial of their contract to contradict it afterwards by oral evidence. This bill of sale is not the written evidence of the contract between Bennett and Belt — that transaction was not put in writing; but after it was made, the bill of sale was executed by Conrad, by direction of Bennett, as a performance of Bennett’s undertaking.

The evidence ought to have been received, and the plaintiff permitted to prove the verbal contract between himself and Bennett, and to recover whatever sum he was entitled to for a breach of that contract.

The judgment is reversed,, and the cause remanded.


text:
    Rippey, Respondent, v. Evans, and others, Appellants.
    1. A person who holds himself out as a partner may he charged as a partner; and where in a petition a person is charged as partner, and the proof shows merely that he has held himself out as a partner; held, that this is no variance.

      Appeal from St. Louis Circuit Court.

    This was an action to recover the value of certain lumber furnished to the defendants as partners, at their request, and particularly at the request of defendant, Dennis. No answer was filed by any defendant except Dennis, who denied that at any time he did business as a partner with the other defendants; that they alone were partners, and that he (Dennis) was their clerk. The cause was submitted to the court sitting as a jury, and the plaintiff introduced'proof showing that previous to the time the lumber was furnished, the other defendants, then doing business as partners under the name and style of Evans, Harris & Co., had been dealing with plaintiff, and, in the language of the witness, had “ got tight up that about that time Dennis came to plaintiff’s office and asked what the debt of Evans, Harris & Co., was, and went on to state that he was “ going in with themthat he had gone around and collected what the “ concern” owed, and was satisfied ; that afterwards, in ordering lumber, he said, “ let our wagon have” such and so much lumber ; that he talked of “ our” property, and said that he was going down to the Republican office to give “ us” a puff; with other evidence tending to the same result. It was also in evidence that plaintiff never would have trusted the other defendants alone.
    Defendant introduced evidence tending to prove that previous to and about the time of the furnishing of the above lumber, an agreement was made between the other defendants, then doing business under the name and style of Evans, Harris & Co., on the one side, and Dennis on the other side, by which it was agreed that Dennis should loan the firm of Evans, Harris & Co. $5000 ; that they should take Dennis as their clerk to manage finances, at a salary of $1000, and if, at the expiration of one year, Dennis' should desire to become a partner, then the $5000 should be considered a payment of his share ; but if not, then the $5000 should be payable six months after notification; and said Evans, Harris & Co., the defendants, executed a deed of trust of certain real estate, to secure the payment of the money loaned. It also appeared on cross-examination, that the said real estate had been sold under the said deed of trust, and bought in by Dennis and sold again. The court found that defendant, Dennis, held himself out to plaintiff as a member of the firm of Evans, Harris & Co., as composed of J. Evans, E. Evans, James Harris and Thomas Dennis, and that in faith thereof the plaintiff furnished the lumber, the value of -which is sought to be obtained in the present action, and gave judgment for the plaintiff for $148 86, with interest from commencement of suit.

      B. Bates, for appellant.

      Shepley, for respondent.
    1. The facts proved on the trial and found by the court sustain the averments of the petition. It is no variance because the court failed to find that a partnership, as to themselves, existed between the defendants. The proof sustains the finding.
   Scott, Judge,

delivered the opinion of the court.

We see no reason to disturb the finding of the court. It seems to be warranted by the evidence, or at least there was evidence enough to support it. Nor does the finding discredit the evidence on the part of the defendants. As to them, Dennis may not have been a partner ; but nothing is more familiar than that persons, as between themselves, may not be partners, whilst they will be so considered as to third persons.

We see no variance between the proof and the cause of action as stated. The defendants were sued as partners, and the evidence conduces to establish the same fact. If Dennis held himself out to the world as a partner, though not a partner in fact, yet he wa<s one as to the world, and it was proper to charge him as such with the other partners.

The other judges concurring,

the judgment is affirmed.


text:
    Geyer, Plaintiff in Error, v. Girard, Defendant in Error.
    1. Section 3 of the “ act regulating conveyances, ” (R. C. 1845,) does not relate to conveyances of leasehold interests.
    2. Where a lessee executes to his lessor a deed of trust upon the leasehold interest to secure the payment of a note given as a part consideration for the lease, and, before the maturity of the note, the lessee is evicted by one having a paramount title, and then takes a lease of the same land from the person so evicting, this lease will not enure to the benefit of a purchaser under the deed of trust.

      Error to St. Louis Land Court.

    This is an action in the nature of an action of ejectment. The facts as found by the court and agreed upon by the parties, are as follows : In the year 1849, John Girard, the defendant, leased from one Maria Solms, the premises in question for the term of ten years. Besides the rent reserved, he (Girard) agreed to pay $100, and gave his promissory note for the same, secured by a deed of trust upon the said lease. In the year 1852, and before the said note became due, the defendant, Girard, was ejected from the leasehold premises by one E. R. Mason, holding under a superior title. After such ejectment, the defendant, Girard, held a portion of said premises, (how long after, does not appear,) as tenant of said E. R. Mason, by a lease. It is agreed by the parties that the said E. R. Mason is the-true and legal owner of the premises, After the maturity of said note, default being made in the payment of the same, the trustee of said Maria Solms sold to the plaintiff the premises of the defendant, .held by the lease from M. Solms, and conveyed by said deed of trust. The plaintiff having thus purchased the leasehold estate of the defendant, held by the lease from M. Solms, and conveyed by said deed of trust, relying upon that title, now brings this suit for the possession of said premises, as to all right thereto held by defendant under the said lease from Mason.
    The court, sitting as a jury, found for the defendant and gave judgment accordingly.

      Delafield and Kribben, for plaintiff in error.

      Jones & Sherman, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

It is plain that in this case the after acquired title does not pass to the grantee in the deed of trust, by virtue of the third section of the act concerning conveyances. That section relates only to estates conveyed in fee simple absolute, and in its terms to no other estates. The subject of the conveyance under consideration is a leasehold interest. The circumstance that it is regarded as real estate by some of our statutes, does not affect this question.

The case must then stand on the reasonableness and justice of it. The doctrine in relation to after acquired estates passing by a former deed of the grantor, is not applicable to the circumstances of this case. The bare statement of the proposition is a sufficient refutation of it. A lessee, in addition to his annual rent, agrees to pay a sum in gross by way of bonus, and gives a deed of trust on the demised premises to his lessor to secure the payment of this sum. Afterwards, the lessee is evicted and takes a lease of the premises from the person by' whom he has been evicted by a paramount title, and who is the real owner of them. Now it is maintained that this after acquired title passed by virtue of the express or implied warranty contained in the deed of trust, and that a purchaser under that deed acquired the title the lessee obtained under her last lease.

The purchaser under the deed is in no better situation than the original lessor, for whose benefit it was given. The terms of the deed under which he purchased was notice to him, as the deed on its face showed that an after acquired title could only come in the event of the failure of the title obtained under the first lease, which was the sole consideration of the deed of trust.

The other judges concurring,

the judgment is affirmed.


author: Ryland, Judge,

text:
    Vogel, Defendant in Error, v. Vogel’s Administrator, Plaintiff in Error.
    1. A stipulation in a marrriage contract to the effect that in case the wife should survive the husband, she should receive from the estate of the husband the sum of $200, is valid; such an instrument is not a testamentary-disposition, but creates a legal liability in favor of the wife, and she may bring suit on the same after the decease of her husband, against his representatives.

      Error to St. Louis Court of Common Pleas.

    The case is fully stated in the opinion of the court.

      C. Gibson, for plaintiff in error.

      Hart & Jecko, for defendant in error.
   Ryland, Judge,

delivered the opinion of the court.

This was a suit in the Common Pleas, by Magdalena Vogel against Henry Vogel, as the administrator of the estate of Everhard Vogel, deceased, on the following contract: “This marriage contract, made and entered into on this 16th day of April, 1850, by and between Everhard Vogel and Magdalena Sehlesser, both of the county of St. Louis and State of Missouri, witnesseth, that, whereas, said parties are at present desirous to become united in the hely bonds of wedlock ; therefore, for the better understanding of parties, it is mutually hereby agreed between them, as follows, to-wit: First, in case of the demise of party of the first [part,'Everhard Vogel, prior to party of the second part, Magdalena Sehlesser, then and in that case she is to receive from the estate of party of the first part the sum of two hundred dollars, cash, for her own benefit and behalf forever ; second, in' case of the death of party of the second part prior to that of party of the first part, then and in that case all the property, of whatever description, that she now has, or hereafter may have, is to descend to the children of party of second part, by her first husband, Frederick Schlesser.” This agreement was signed and sealed by the parties, and witnessed by Joseph Kountz.

The plaintiff sues for the two hundred dollars promised to her in this marriage contract. There was a demurrer by defendant to the petition, which was overruled, and judgment afterwards rendered by default in favor of the plaintiff. The defendant excepted, sued out his writ of error, and brings the case to this court.

The defendant, plaintiff in error, relies upon the following point for a reversal: That this contract is a testamentary disposition, and does not create a legal liability so as to constitute the plaintiff a creditor; • that she should go into the Probate Court and claim as a distributee ; and that this action can not be maintained.

'This court will therefore only notice this point. In our opinion this is a valid and subsisting contract, and that a legal obligation is thereby created in favor of the petitioner to demand the sum of money from the estate of her deceased husband. The marriage of the parties did not destroy the petitioner’s rights ; her cause of action did not accrue until after the dissolution of the marriage, and the promise to her to have the sum of two hundred dollars from his estate paid to her, authorizes her to sue for it in the court below. In Gage v. Acton, decided in king’s bench, in the 11th year of William III, it was held that a bond with a condition, &c., given to a feme sole, is not discharged by her marrying the obligor. After several arguments at the bar, the court, consisting of three judges, gave separate opinions, and Gould and Turton, justices, were of opinion that the bond was not destroyed, nor the debt extinguished by the marriage. Holt, chief justice, was of a contrary opinion.' This opinion of Holt’s was afterwards mentioned with regret by Lord Kenyon, chief justice, in the case of Milbourn v. Ewart et al., (5 Term Rep. 384): “I can not but lament,” said Lord Kenyon, “ that he (Holt) had recourse to such flimsy and technical reasonings to enforce a case so directly against law and conscience. ” The case of Gage v. Acton is reported by Carthew, at p. 511; 1 Salkeld, 825 ; 12 Mod. 290 ; Smith et ux., v. Stafford, Hobart’s Rep. 377. In the case of Milbourn v. Ewart et al., 5 Term Rep. 381, the court of king’s bench was unanimous in the opinion that a bond conditioned for the payment of money, after the obligor’s death, made to a woman in contemplation of the obligor’s marrying her, .and intended for her benefit, if she should survive, is not released by their marriage. Then why may not the wife, or rather the widow, sue upon such an obligation ? It is not released; it is still binding, and we are aware of no principle which deprives her of her remedy on such an obligation. The judgment below is affirmed;

the other judges concurring.


author: Leonard, Judge, Scott, Judge.

text:
    Jones’ Administrator, Appellant, v. Covington, Respondent.
    1. A. by instrument of writing not under seal, executed in the year 1838, conveyed to B. a negro slave ; A. retained possession of the slave until his death in 1853 ; held, that B. had no title to the slave.
    2. Under the law as it stood in 1838, (see R. C. 1835,-p. 588,) in order to perfect a gift of a slave so as to divest the title of the giver even as against himself, there must have been either a change of the possession or a recorded instrument of the character designated in the statute. Per Leonabd, J. (Scott, J., nonconcurring in this doctrine, holding that a deed of gift of a slave, under seal, will pass a title to such slave, notwithstanding the said statute. The common law respecting gifts was in force, notwithstanding the statute.)

      Appeal from St. Louis Court of Common Pleas.

    This was an action to recover a slave which had originally belonged to one John Howdeshell, who, on the 10th of September, 1838, made the following bill of sale: “ Know all men by these presents, that I, John Howdeshell, o£ the state o£ Missouri and county of St. Louis, have this day bargained and sold unto Nathan Jones, of the state and county aforesaid, two black children, slaves, one called Jane, a girl, seven years old, the other called Lewis, a boy, four or five years old, for and in consideration of the services and parental affection existing towards Sarah Jones, wife of the aforesaid Nathan Jones, to have and to hold as their property and for their use forever. Griven under my hand this 10th day of September, 1838. [Signed] John Howdeshell.”
    This suit was brought in April, 1853, by plaintiff, as administrator of Nathan Jones, against Covington, to recover the boy Lewis, who had been hired to defendant by the administrator of said Howdeshell. It was in evidence that at the time of the execution of this writing, it was delivered to one John Jones, in charge, for the benefit of Sarah Jones ; he to keep the same until the death of Howdeshell, and then to carry out his (Howdeshell’s) intentions ; that Howdeshell died in 1853 ; that the said John Jones, on learning, in 1849, that Howdeshell had made his will, delivered the said instrument of writing to either Nathan Jones or his wife Sarah; that Howdeshell retained possession of said slave, Lewis, until his death in 1853, there never having been a delivery of said slave to either Nathan Jones or his wife Sarah Jones. Upon this evidence the court ruled that plaintiff could not recover.
    Gantt, for appellant.

      Cline & Jamison, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

The question here is, as to the effect of the alleged instrument of gift under which the intestate claimed the slave in controversy, from Howdeshell, the original owner.

This instrument was not a recorded deed, and the possession of the property given did not accompany it, but remained with the donor until his death, and the slave was then hired by his administrator to the defendant. The transaction between Howdeshell and the plaintiff’s intestate was an imperfect gift, remunerative it may be for services rendered, but still purely voluntary ; and under the third article of the law of 1835, concerning slaves, was altogether ineffectual to effect a change of legal ownership, even as between the parties themselves for want of the solemnities there. required. Under our law, as it stood when this transaction occurred, in order to perfect a gift of a slave, so as to divest the title of the giver, even as against himself, there must have been either a change of the possession or a recorded instrument of the character designated in the statute. The law is so written, and it is not pretended that either solemnity was observed here. There is no ground, therefore, for insisting that the gift transferred the title even in a controversy between the original parties. Our statute, which came here in 1804, is a copy of an ancient Virginia act, and the construction we now put upon it is the same given to the Virginia act in Durham and wife v. Dunkly (6 Rand. 14).

All of us concur in affirming the judgment; but Judge Scott does not concur in the grounds upon which it is here put.

Scott, Judge.

There is no deed of gift in this case. The instrument claimed to have conveyed the slave is not under seal. There then being no seal and no actual delivery of the slave, the instrument amounted to nothing more than a contract to convey, and passed no property. In my opinion, a deed of gift, under seal, without actual delivery, will pass a title to a slave, notwithstanding the late statute concerning slaves. The common, law respecting gifts was in force notwithstanding the statute, leaving it to operate in cases within its provisions. (Swartz v. Chappell, 19 Mo. 304.)


text:
    Conrad & Bennett, Appellants, v. Belt’s Administrator, Respondent.
    1. Where evidence rejected is of too vague and indecisive a character to produce' any effect on the finding of the facts by the court, the supreme court ■will not reverse the judgment of the court below.
    2. To induce the supreme court to interfere with the finding of the facts by the lower court, such finding must be clearly wrong ; it is not sufficient that, from the evidence, the finding might have been different; it must be a strong case.

      •Appeal from St. Louis Circuit Court.

    Conrad & Bennett exhibited an account before the Probate Court of Si. Louis county, against the estate of Francis T. Belt, claiming a balance due them of $215 50. The Probate Court disallowed the account altogether. The cause was taken to the Circuit Court, which gave judgment in favor of plaintiffs for the sum of $11 87, from which judgment they appealed to this court. The claim of plaintiff was for money-received by Belt, defendant’s intestate, while master of the steamboat Saluda, while plaintiffs were owners thereof. Belt afterwards purchased Bennett’s interest, one-half, in said boat, and the question in this case was as to the amount of credit to which defendant is entitled for repairs paid for by Belt, his intestate, and by defendant as his administrator. Defendant claims that the whole cost of said repairs paid should be allowed as a credit on the ground that they were made while Belt was master and not owner of said boat; while defendants claim that said Belt’s estate is entitled to a credit of only one half of the amount paid. The court allowed a credit of the whole amount, on the ground that the liability for the repairs was incurred before the purchase by Belt. - On the trial before the Circuit Court, the following question and answer on a deposition offered in evidence by plaintiff, were rejected by the court, on motion of defendant; “ Ques. Do you know whether or not Capt. Belt took, possession of her (the steamboat Saluda) or exercised acts of ownership over her before she went on the docks ? Ans. As I said before, Belt had been master of the boat, and I did not notice any material difference in his conduct.” Defendant, on the trial, also gave evidence tending to prove that several accounts, for work and services upon the Saluda, and for supplies, had been'proved and allowed against Belt’s estate, amounting in the aggregate to $882 81 ; that all of said accounts were incurred between March 21st and April 9th, 1852, (March 22 being the date of the bill of sale to said Belt, of one half of said boat,) and had been paid by the administrator of Belt. It does not appear that this evidence was noticed by the court in making the finding of the facts.

      Krum & Harding, for appellants.

      T. T. Gantt, for respondent.
   Scott, Judge,

delivered the opinion of the court.

As this case is submitted to us for a review as to the finding of the facts, we may look at the evidence rejected ; and if we see that, if thrown into the scale of the plaintiffs, it would not induce us to disturb the finding, we would not be warranted in reversing the judgment on that account. The evidence rejected is of too vague and indecisive a character to produce any effect on the finding.

As to the account of moneys paid by the intestate, on account of the boat, and allowed in the Probate Court, we can not see how the plaintiffs were prejudiced by its introduction. The defence of the defendant was no set-off. The dispute was about the repairs done to the boat. The account filed by the plaintiffs admitted that defendant’s intestate was entitled to a credit in respect of them, and the controversy was as to the amount. The defence only contested the correctness of the account as stated.

There was evidence sufficient to support the finding, and as the parties submitted the cause to the court for trial, waiving a jury, it must be a strong case to induce us to interfere with the finding. When a cause is submitted to a jury, this court will not entertain a writ of error on the ground that the vgrdict is against the weight of evidence. The present practice act allows’a case to be made and brought here for a review on the finding as to the facts. In such cases, to induce this court to interfere, the verdict must be clearly wrong. ■ -It is not sufficient that, from the evidence, the finding might have been different.

With the 'concurrence of the other judges,

the judgment is affirmed.


text:
    Beachboard’s Administrator, Respondent, v. Luce, Appellant.
    1. Although parties to a suit may prove by their own oaths the loss or destruction of instruments in writing on which they rely, yet they can not be permitted themselves to testify as to the contents of such instruments.

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

    This was a writ originally commenced before a justice of the peace on a promissory note for seventy dollars, made by the defendant, Luce, to Boachboard, the plaintiff’s intestate. The defence relied upon by the defendant was a payment of the note. The defendant filed his affidavit of the loss of the receipt, given to him, the said defendant, by Beachboard in his lifetime, for the amount due on said note. Upon the trial, the defendant, Luce, was offered as a witness by his counsel, to prove the contents of said receipt. He was rejected by. the court on the objection of plaintiff’s counsel, and judgment given for the plaintiff for the amount of the note with interest. To the rejection of the defendant, as a witness, the defendant’s counsel excepted, and b2'ings the case here by appeal.

      W. L. Sloss, for appellant.
    P. C. Morehead, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

The only question here seems to be, whether the court erred in refusing to allow the defendant leave to prove by his own oath the contents of a lost receipt, upon which he relied as evidence of the payment of the note sued on.. From the necessity of the case, parties are allowed to prove by their own oaths the loss or destruction of written instruments, in order to let in oral proof of their contents ; and this is as far as the law has gone. This was done here, and other evidence was then rightly required of the contents of the lost paper. What passed at the original trial, before the justice of the peace, did not change the rules of evidence applicable to the case in the law commissioner’s court. The judgment is affirmed.


text:
    Matthews, Respondent, v. Gloss, Appellant.
    1. Where an appeal is taken from a justice of the peace in a proceeding under the landlord and tenant act, and the transcript is filed by the justice in the land court; held, that it is error to dismiss the appeal on motion of the appellee, on the ground that the recognizance stated the appeal to be to the law commissioner’s court, a motion for leave to amend the recognizance having been made before the motion to dismiss was disposed of. The court should have permitted appellant to file a good and sufficient recognizance.

      Appeal from, St. Louis Land Court.

    The case is sufficiently stated in the opinion of the court.

      P. C. Morehead, for appellant.

      C. Gibson, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This was a suit before a justice of the peace, under the landlord and tenant law of St. Louis county, to recover possession of a certain tenement in St. Louis. On the trial before the justice, the plaintiff recovered judgment, and the defendant took an appeal. The recognizance taken by the justice required the plaintiff to satisfy the judgment, if there should be one on a trial anew in the law commissioner’s court of St. Louis county, instead of the Land Court. The transcript being filed by the justice in the Land Court, the appeal was there dismissed, on motion of the appellee, because “the recognizance specified the appeal to the law commissioner’s court.” While this motion was pending, the appellant moved the court for leave to amend the recognizance. This was refused, and the appellee’s motion sustained.

The record shows that the affidavit for the appeal was made by Cecelie Lecompte, who claims to be the landlord of the tenant, Gloss. The recognizance is also subscribed by her and Rene Lecompte.

The Land Court erred in sustaining the appellee’s motion to dismiss. That court should have permitted the appellant to file a good and sufficient recognizance, and ought to have overruled the motion to dismiss. The statute declares that “no appeal allowed by a justice shall be dismissed on account that there is no recognizance, or that the recognizance given is defective, if the appellant, or some person for him, will, before the motion to dismiss is determined, enter, before the court, into such recognizance as he ought to have entered into before the allowance of the appeal, and pay all costs that shall be incurred by reason of such defect or omission.” (Justices’ Courts, § 17, art. 8, R. C. 1845, p. 670.)

The judgment of the Land Court must, consequently, be reversed, and the cause remanded ;

the other judges concurring.


author: Scott, Judge

text:
    Goetz, Respondent, v. Ambs, Appellant.
    1. The supreme court will not grant a new trial on the ground that the verdict of the jury is against the weight of evidence.
    2. Where, however, the damages awarded by the jury are excessive, and unwarranted, the supreme court will award a new trial, if the ends of justice will be subserved thereby.

      •Appeal from, St. Louis Court of Common Pleas.

    This was an action for an assault and battery. The petition charges various injuries to the person of plaintiff, and particularly an injury to one*of plaintiff’s eyes, caused by a blow of a whip, inflicted by defendant, by reason of which plaintiff underwent great pain, and was prevented from engaging in his business for the space of six weeks, and was subjected to an expenditure of seventy-five dollars, in and about endeavoring to be cured of the injuries inflicted. The damages were laid at $5000. The defendant, in his answer, denied all the material allegations of the petition. The testimony offered by plaintiff and defendant was conflicting. That offered by plaintiff tended to prove that the defendant, who was proprietor of “ Camp Spring,” a place of resort for purposes of amusement, without provocation, struck the plaintiff a severe blow with the butt end of a whip, injuring the eye of plaintiff and so disabling him as to render it necessary that he should cease laboring at his trade, that of a stone cutter, for the space of five or six weeks ; that plaintiff could earn at his trade from three to four dollars per day; that the physician’s bill was between sixty and seventy dollars. The physician who attended upon plaintiff testified that the injury to plaintiff’s eye was or might be permanent, and that sight might never be restored entirely. To this testimony defendant objected as incompetent and irrelevant under the petition. Objection overruled and exception taken. The testimony offered on part of defendant conflicted with that offered by plaintiff, and tended to prove that it was not the defendant who struck the plaintiff; that plaintiff was injured in a quarrel that arose at “ Camp Spring,”.by some person other than defendant. The following instructions were given by the court: “ 1. If the jury believe from the evidence that the plaintiff was struck in his left eye by the defendant, with the butt end of a whip, which he held in his hand, they will find for the plaintiff. 2. If the jury find for the plaintiff, they should allow such damages as will compensate him-for the expenses he incurred in endeavoring to cure himself of the injury inflicted by the defendant, and for his loss of time in consequence of such injury, and, in addition thereto, may allow such further sum for exemplary damages or smart money as they may, under all the circumstances and facts, deeni right. 3. If the jury believe from the evidence that the defendant did commit the assault and battery complained of, then the defendant can not, under the pleadings, set up any matter in justification for the same. 4. If there was a quarrel or general fight at the Camp Spring garden at or about the time plaintiff was injured, and the plaintiff did not participate therein, then that fact should not be considered as mitigating the damages, if the defendant intentionally struck the plaintiff in the manner charged. 5. If the jury believe from the evidence that any witness has wilfully testified falsely to any material fact, they should reject all parts of his testimony which are false, and are at liberty to reject his testimony altogether. It is the exclusive province of the jury to determine what weight should be given to the testimony of each witness.” To the giving of these instructions the defendant excepted. The jury returned a verdict for the plaintiff' for $2000. A motion for a new trial was overruled, and plaintiff brings the case here by appeal.

      Hudson & Thomas, for appellant.

      Hart & Jecko, for respondent.
   Scott, Judge

delivered the opinion of the court.

This court does not interfere with the verdict of a jury on the ground that it is against the weight of evidence. If, however, upon the report of the evidence on a trial, we were warranted in granting a new trial, we do not know how we would resist such-an application on this occasion. As a new trial will be granted on account of the excessiveness of the damages, we deem it inappropriate to make any comments on the case. Upon looking over the record, we are satisfied that the ends of justice will be subserved by granting a new trial; although the injury sustained was a serious one, we do not tbink the circumstances warranted so heavy a verdict.

The judgment is reversed, and a new trial ordered,

with the concurrence of Judge Ryland.