author: Ryland, Judge,

text:
    Wells, Respondent, vs. Sanger & others, Appellants.
    1. The supreme court will not reverse for excessive damages, unless they are so exorbitant as at first blush to show malice or improper bias.
    2. Suprise of a defendant by the unexpected close of plaintiff’s case, no. ground for a new trial.
    3. Newly discovered cumulative evidence no ground for a new trial.

      Appeal from, Callaway Circuit Court.

    The case is stated in the opinion of the court.

      Gardenhire, for appellants.
    1. The verdict was obtained by the fraud of the plaintiff in suppressing the truth, and should be set aside. ‘ 2. The damages are excessive. (15 Mass. 365. 4 Mass. 1. 16 Pick. 541. 13 Mo. 427. 5 Mo. 205.) 3. The surprise of the defendant at the trial is a ground for setting aside the verdict. (Practice Act, art. 11, § 3. 1 A. E. Marsh. 334. 2 McCord, 313. 3 McCord, 258. 9 Lana, 134. 25 Wend. 263. 1 Iowa, 134. 7 Monroe, 59. 2 Sm. & M. 313.) 4. The newly discovered evidence was good cause for a new trial. (7 Metcalf, 478. 18 Vermont, 460. 20 Conn. 305.)

      P. R. Hayden, J. W. Morrow and J. F. Jones, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This was an action by plaintiff against Sanger & Burnell, part owners of a stage coach, for injuries received by the plaintiff from the upsetting of the coach in which the plaintiff was at the time a passenger.

During the progress of the ease in the court below, the defendant, Burnell, died, and Preston B. Reed, the administrator of his estate, was duly made a party defendant.

The case was tried by a jury in the Callaway Circuit Court, at the April term, 1855, and a verdict rendered for the plaintiff for eleven hundred dollars. A motion was made by defendants for a new trial, which being overruled, they bring the case here by appeal.

The refusal of the Circuit Court to grant a new trial is the principle ground relied upon here by the defendants for a reversal of this judgment. They contend that the verdict was obtained by fraud, and also that the damages are excessive.

The plaintiff, in his petition, stated that, by the overturning and upsetting of the defendants’ stage, he had his right shoulder and shoulder-blade, and three of his ribs broken, fractured and mashed; and that he was also, in other respects, greatly hurt, bruised and wounded, by means of the turning over and upsetting of the said stage coach.

On the trial before the jury, the great struggle seemed to be, to show when the injuries to the plaintiff were in reality received by him. The defendants contended, and endeavored to show to the jury, that the plaintiff received the injuries in the state of Ohio, before he started to Missouri, by means of his riding horse falling down with the plaintiff and fracturing his shoulder, and dislocating it; and that the injuries stated in his petition were not received by him by the overturning and upsetting of the defendants’ stage coach, but by the fall of the horse. The plaintiff endeavored to show a complete recovery from the effects of the fall of his horse, and that the overturning of the stage was the cause of his injuries. The proof showed that the stage driver was drunk, and that he overturned the stage in a level piece of prairie, with some seven or eight passengers, besides the plaintiff, in it. The plaintiff complained very much of the injuries received at the time. The defendants contended that this was a fraud on the part of the plaintiff, in order to recover from them compensation for injuries which he bad previously received, and wbicb the defendants did not, in tbe least, contribute to inflict. This matter was put before the jury by both parties. The defendants produced some ten or twelve depositions from persons in Ohio, showing the state of the plaintiff in regard to the injury received from the fall of the horse, and what he said about his situation in reference to said injuries ; the plaintiff proved his ability to work after the fall, his assisting in shucking corn ; his helping to unload the steamboat at St. Louis, by carrying from it to the wharf pig iron : this was on his way out to Missouri, and shortly before he started up in the stage of the defendants.

Many instructions were given by the court, at the motion of the parties ; one of which, given for defendants, and numbered 5, is as follows : “If the jury believe from the evidence, that the injury complained of by the plaintiff was occasioned by the fall from a horse or otherwise, in the state of Ohio, previous to his coming to this state, and that plaintiff was still suffering from the effects of said injury when the stage was upset, and that plaintiff received no additional injury thereby, then they will find for defendants ; and if any additional injury was received in consequence of said upsetting, then they will find only such damages as will compensate said plaintiff for such additional injury.”

This instruction placed before the jury, properly, the fact of a previous injury, and directed them not to give damages for such previously received injury, if they should be of opinion there wa3 such, and to give damages only for such additional injuries as were received by the upsetting of the stage. This matter, then, in which the defendants allege the plaintiff’s fraud to consist, was brought out and placed before the jury; it was left open for them to consider and pass upon it.

Had this matter of the fall of the horse in Ohio, and the previously received injury of the plaintiff, not been before the jury — not been brought out by a vigilant, searching inquiry into its nature and extent, and fully placed before the jury, with proper and liberal instructions in regard to it by the court, tbe defendants might very properly complain of the plaintiff’s conduct, in saying nothing about the previous fall in Ohio. Rut, surely, there is now no reason, on this score, for the clamor raised by them of fraud. They knew the whole matter, and put it before the jury, and they complain because the plaintiff did not tell them about it. Would their having learned this matter from the plaintiff have enabled the defendants to use more diligence in procuring proof of it ? Suppose the plaintiff felt himself entirely recovered from the effects of the fall in Ohio, before the upsetting of the stage, was he morally bound to tell that he had been injured before in the same shoulder, but had recovered from it? We cannot say that this judgment was obtained by fraud.- Although the plaintiff may have been willing to conceal from the defendants all previous injuries ; nay, may have been disposed to recover from the defendants for injuries which the defendants had no hand in inflicting on him, and in doing this may have acted in bad faith, yet the defendants were informed of the previous injury, and brought it out by a large amount of testimony, and procured an instruction properly enabling the jury to do justice to the defendants by their verdict. There is nothing, then, in this objection, or in this point, which, in our opinion, will warrant this court in disturbing the judgment below.

1. As to the excessive damages, there is nothing which will justify the interference of this court, on this ground, as presented by the record before us. The jury is the proper tribunal to assess the requisite damages in cases of this character; and, unless their estimate he an exorbitant one, or such an one as at first blush would appear the offspring of malice, or exceedingly improper bias on their part, the courts have invariably refused to correct the verdict by granting a new trial. (Fallenstein v. Boothe, 18 Mo. Rep. 429.)

Where the amount of damages is matter of opinion merely, a new trial will not be. granted for excessive damages, unless flagrantly excessive. On this ground, we do not think this court authorized to interfere. Here, the damages are merely matter of opinion. We cannot say they are excessive. The danger to human life, by the employment of drunken agents, engineers and drivers, on our railroads, steamboats and stage coaches, is imminent indeed. The amount of human suffering arising from the employment of such, is necessarily great; and when a case is presented before the courts and juries of the country, it is not surprising that liberal damages should be awarded to .the sufferer. There can be little excuse, indeed, for such small regard to human beings, as that manifested in this case. Here, the driver, by his drunkenness, managed to turn over a stage, loaded with men, women and children, on a level, smooth prairie, free from obstructions of every kind— too drunk to guide his team. The employers, in business so important to the public as that of common transportation of men and property along our public highways, will, in time, be taught, by the honest jurymen of the country, that it is the worst economy to engage such employees.

2. The surprise on the part of the defendants, occasioned by the unexpected close of the case, by the plaintiff, without his examining all the witnesses summoned on his part, and thereby depriving the defendants of the testimony of their witness, Mrs. Lee, who reached the place of holding court after the argument of the case had been closed, and the case submitted to the jury, is more a mattter of misfortune to the defendants than fault on the part of the plaintiff, or of error on the part of the court.

The defendants knew their witness was absent; they did not ask that the case might be postponed for a time, or for a continuance of it, but trusted to the chances of having their witness ready in time; in this they were disappointed. It was competent for the plaintiff to stop when he had made out his case, as he supposed ; nor could the defendants object. It is within the discretion of the court to hold its sessions in the night time for the dispatch of business and the convenience of parties, jurymen and witnesses. This is often done; nor can it afford just cause of complaint to the defendants in this case. They knew that their witness was not in attendance; they calculated to have her ready in time, and would have succeeded in their expectations if the plaintiff had taken more time to examine his witnesses, and the court had not held its sessions in the night time. These were matters on which the defendants had no right to base calculations. Having run the risk, they cannot be permitted to complain after it turns out contrary to their expectations. Mrs. Lee’s evidence, as appears from the affidavit of the defendants’ agent, would have been on the subject of the situation of the plaintiff before the upsetting of the stage ; it would have been on the same subject on which the jury passed ; it was cumulative ; it might have been stronger and more satisfactory to the jury, but still it is cumulative. However, on the other ground, there is no cause for this court to interfere by reversing and ordering a new trial. The Circuit Court had the whole transaction before it, and could well see if there had been any thing wrong or prejudicial to the defendants in this matter, and could have remedied the injury, if any, by a new trial.

3. As to the last remaining point, the newly discovered evidence, that is also against the defendants.

This evidence is what may be called cumulative, and upon the subject of newly discovered evidence, as the ground for a new trial, the law is well settled. (4 Bibb, 563. 2 A. K. Marsh. 348. 12 Mo. Rep. 57.) In the case of Beauchamp v. Sconce, (12 Mo. Rep. 67,) this court held that cumulative evidence, that is, evidence of the same import as that given upon the trial, was not sufficient to authorize the court to grant a new trial, because such a practice would inevitably lead to fraud, subornation, delay and vexatious uncertainty. This is in accordance with the general rule. In the case of Smith v. Brush et al., (3 Johns. 84,) the court held, that, where the new testimony alleged to be discovered does not relate to any new fact, but goes to corroborate what a witness had previously stated, was not a sufficient cause for granting a new trial. The language of the court is, “ but it is against the general rule to grant a new trial, merely for the discovery of cumulative facts and circumstances relating to the same matter, which was principally controverted upon the former trial.” See also 15 Johns. 212. There are exceptions to this general rule. In actions of ejectment, relative to the lands in the military tract, in New York, where the principle or turning point in the case is the identity of the soldier entitled to the bounty land — there, newly discovered testimony, though cumulative, has been frequently held sufficient to grant new trials ; the court stating, “ these cases are peculiar, and not to he strictly governed by the rules adopted in ordinary cases.” See Jackson v. Crosby, (12 Johns. 354. 8 Johns. 489.)

Upon the whole record in this case, we cannot see any cause for the interference of this court with the judgment below ; it is therefore affirmed;

Judge Scott concurring; Judge Leonard not sitting, having been of counsel in the court below.


source: Caselaw Access Project

author:
Ryland, Judge,
      Scott, Judge,

license: Public Domain

text:
    North & Scott, Respondents, vs. Nelson & McClure, Appellants.
    1. Under the practice act of 1849, where a defendant, upon whom there has been fifteen days’ service of process, files an answer admitting the cause of action, or containing no defence, the plaintiff is entitled to judgment at the return term as for want of an answer. (Judge Scott dissenting.)

      Appeal from Moniteau Circuit Court.

    The case is stated in the opinion of the court. It was argued and decided at the January term, 1854, but the opinion of the court was not filed until the present term.

      E. L. Edwards, for appellants.

      M. M. Parsons, for respondents.
   Ryland, Judge,

delivered the opinion of the court.

The plaintiffs, William North and William P. Scott, on the 29th of August, 1853, filed their petition in the Moniteau Circuit Court clerk’s office, against Alexander R. Nelson and Jas. H. McClure, defendants, stating that the defendants, by tbeir promissory note, dated 26th October, 1852, promised to pay the plaintiffs, or order, four months after date, the sum of five hundred and fifty-three dollars and ninety-two cents, for value received; on which note were credits, endorsed at different times, amounting to three hundred dollars. The plaintiffs asked judgment for the balance of principal, with interest.

On the 30th of August, the clerk issued a writ of summons against the defendants, returnable to the September term of the Circuit Court of said county. The sheriff returned the writ executed on the 5th of September, 1853, by leaving a copy of the writ and petition at the usual place of the defendant, McClure, with his wife, a white person of the family, above fifteen years of age ; and on the same day, by reading the petition and writ to the other defendant, Nelson.

On the 26th day of September, 1853, the Moniteau Circuit Court commenced its term. On Thursday, 29th September, being the fourth day of the term of said court, the defendants filed the following answer to the plaintiffs’ petition:

“Nelson & McClure, defendants, vs. North & Scott, plaintiffs. Said defendants admit that they executed the note sued upon to the said North & Scott, the plaintiffs in said suit, and that the payments endorsed thereon are correctly endorsed, and that there is a balance due said plaintiffs, which defendants will pay as soon as they can get the money.”

This answer was signed by the attorney of defendants, and sworn to by one of the defendants. On the same day, the plaintiffs, by their attorney, moved the court to strike out defendants’ answer, because it does not contain any grounds of defence.

This motion was sustained by the court; the answer was stricken out, and the plaintiffs obtained judgment for want of an answer.

The defendants excepted to these rulings of the court, and bring the case here by appeal.

The only point made by the appellants is, that the defendants having answered, and presented no false issue to the court, the court had no authority to strike out the answer. The appellants, by their counsel, contend that this case differs from the case of Jeffries v. Sappington, (15 Mo. Rep. 628,) and of Neidlet v. Wales, (16 Mo. Rep. 214,) because, in these cases, the defendants set up in their answers as a defence, matters which, in law, were no defence, and which this court held were properly stricken out. But, in this case, the answer presents no false issue, and is not, therefore, a similar case. Here, the answer, it is said, admits the debt, which is all the defendants could do, and, if it is stricken out, it is because it contains the truth. Really this is strange logic. Can it be pretended that this answer sets up a defence to the plaintiffs’ petition ? Who ever heard before, that it was in law a defence to the plaintiffs’ action for the defendant to say in writing, “ I owe you the money in your petition demanded of me, and I will pay you as soon as I get it ?”

Under our new code, the only pleading on the part of the defendant is either a demurrer or an answer. (Practice Act, 1849, art. 6, sec. 2, p. 80.) “The answer of the defendant shall contain, 1st, In respect to each allegation of the petition controverted by defendant, a specific denial thereof, or of any knowledge thereof, sufficient to form a belief; 2d, A statement of any new matter constituting a defence, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. The defendant may set forth in his answer as many grounds of defence as he shall have. They shall be separately stated, and may refer to the causes of action which they are intended to answer, in any manner by which they may be intelligibly distinguished.” .(Secs. 7 and 8 of art. 6, of same act.) The defendants below, appellants here, seem to think that it is the falsity only of the matters stated in the answer that can authorize the court to strike it out, and therefore they are compelled, in their argument before the court, to assume that the answers put in by the defendants, in the cases of Jeffries v. Sappington, and Neidlet v. Wales, presented false issues, and hence, it was not error to strike them out; but, as the answer in this case presented the truth, it was wrong to strike it out. This court did not pretend to place its opinion in those two cases upon any doubt of the truth of the matters set forth in the answers. The matters were taken as true, and then they constituted no legal defence. Likewise here, the matters set forth in this answer may be taken as true, and still they present no defence to the action of the plaintiffs. They amount to no answer, and the Circuit Court did properly sustain the motion to strike out the answer ; its action is fully supported by the decisions of this court, in the cases of Jeffries v. Sappington, and Neidlet v. Wales.

Then what is to be the result? Here is a petition founded on a simple promise to pay money: the defendants having been legally served with process more than twenty days before the return day of the summons — one by personal service, the other by constructive — they appear and fail to make any proper or legal defence to the action ; they offer an answer which is stricken out, on motion, which amounts to no answer. Now what must the plaintiffs do ? Demand judgment by default, for want of an answer, or voluntarily continue the cause ? I say, without hesitation, demand judgment, and that the Circuit Court is bound to render judgment in such cases by every principle and rule of practice known to our law.

In examining this subject, let us go back to the territorial law of July 3d, 1807. Here we find that, on the plaintiff’s filing his declaration, petition or statement in the clerk’s office, “ it shall be the duty of the clerk to endorse thereon an order to the sheriff, in the nature of a summons or capias, according to the nature of the demand or complaint; provided, there shall be at least fifteen days between the execution of such writ and the term to which it is made returnable. It shall be the duty of every defendant to plead to the merits on or before the third day of each term, and if any part of the pleading is adjudged bad, immaterial or insufficient, the party shall be required to plead to tbe merits instanter; and if tbe plaintiff shall conceive that the matter contained in the defendant’s plea requires time to reply to, he may continue his cause until the next term, or proceed to trial. It shall be the duty of the court to try each cause in which an issue is made at the first term; provided they are of opinion the very right of the case can be attained. If the defendant fails to appear and plead, the plaintiff may cause judgment to be entered up against him at any time during the last day of the term, which judgment shall be final.

“The service of a summons shall be by reading the writ, declaration, petition or statement to the defendant, or delivering him a copy thereof, or leaving such copy at his usual place of abode, with some person of the family, above the age of fifteen years, and informing such person of the contents thereof; such service to be at least fifteen days before the return day of the writ.” (Edwards’ Ter. Law, p. 113, 114.)

By the third section of the act of the legislature of the territory of Louisiana, passed October 30th, 1810, it was made lawful for either party “ to continue his suit the first term to which the writ is made returnable; and the second term, no continuance shall be granted to either party, unless for good cause shown.” (1 vol. Edward’s Ter. Laws, 244.) Thus stood the law until 1822; prior to 1810, the issues, when joined, were triable at the first term, if the court was of opinion that the very right of the case could be attained. The plaintiff could continue in order to have time to reply; but, at second term, the trial must be had, unless good cause shown for a continuance. The defendant, under this state of the law, must plead to the merits on or before the third day of the term, if the writ had been served fifteen days before the return day thereof. If no plea, or an insufficient plea be filed, and a failure to file a good one, the plaintiff could obtain his judgment by default at the first term.

“ No plea in abatement shall be admitted or received, unless the party offering the same shall prove the truth thereof by oath or affirmation, as tbe case may require.” (Practice Act of 1807, sec. 27. 1 Ter. Laws, 115.)

Dilatory pleas were never allowed without oath. Pleas to the merits were always admitted, without respect to form, where they contained sufficient matter to bring the merits of the case at issue. (Same act.)

Under this state of the law, that is, from 1807 to 1822, the plaintiff had a right to his judgment by default, if the defendant had been duly served with process, and failed to file a plea putting the case at issue in some mode or other.

By the act to regulate proceedings at law, passed by the legislature of the state of Missouri in January, 1822, “ every defendant duly served with process shall plead to the merits on or before the sixth day of the term to which the original writ is returnable, if the term shall so long continue ; and if not, then before the end of the term.” (Sec. 19.) “ If the defendant shall fail to file his plea or other pleading within the time prescribed by this act or rule of court, the plaintiff may have judgment by default; and in eases of judgment by default, where the demand is liquidated and reduced to writing, the court shall render judgment for the amount due, which shall be final.” (See. 26 of same act.) Thus stood the law up to 1825. Wherever there had been service on the defendant, and he failed to plead, judgment was given against him by default. The. plea, too, must be a meritorious one. If an immaterial issue was tendered, or any plea not substantially answering the declaration was filed, it was liable to be demurred to, or regarded as a nullity; and unless a good and sufficient plea was filed by the defendant at the first term, judgment was rendered against him by default. But all cases in which available pleas had. been filed, or proper issues made, were continued the first term, as a matter of course.

In 1825, the legislature passed an act called the petition and’ summons law. By this act, any person holding a bond or note for the direct payment of money or property, might file his. petition ; a summons was to issue thereon, which, if served fifteen days before the return day of the writ, the plaintiff had a right to judgment by default, unless the defendant filed his plea to the petition on or before the second day of the term at which the writ was made returnable. If the defendant filed his plea, then a trial was had at the first term, unless continued for cause shown. Here was the first great innovation in the proceedings to collect debts in our courts. This petition and summons act required the defendant, who had been served personally with process, fifteen days before the return day of the writ, to plead to the action within the two first days of the term, or judgment would be rendered against him by default. But even if he did plead, he was not entitled to a continuance, unless he showed cause therefor. There was to be a trial at the first term, and judgment could be rendered against him, on trial, at the first term, after fifteen days’ service of the writ, and his estate sold to satisfy the same. Thus stood the law in cases of the direct promise by one person to another of the payment of property or money, evidenced by bond or note, up to 1849. The summons must be executed in these cases, personally, by delivering a copy of the petition and summons to each defendant, and when so executed fifteen days before the return day, the defendant must plead within the two first days of the term, and a trial be had at that term, unless a continuance be ordered for cause shown. If the service be otherwise than personal, the defendant must plead within the six first days of the term, and then the cause stands continued; otherwise the plaintiff will have judgment by default. These pleas must be to the merits, putting in issue, substantially, the matters involved in the controversy. (Donaldson v. Anderson, 5 Mo. Rep. 480. Southack v. Morris, 6 Mo. Rep. 351.)

There was still a common law method of collecting debts, by filing declaration, and a common law method of proceeding in other actions. Yet, in all these common law actions, wherever the defendants had been served with process fifteen days before the return day of the writ, and they failed to plead to the action, judgment was rendered against them by default. And it was not any frivolous or immaterial plea that would answer for a continuance ; there must be an issue formed properly under the rules of pleading known to the common law, and also as regulated by our various statutes, that would entitle the defendant to his continuance.

Thus the petition and summons, authorizing a trial at the first term, upon fifteen days’ personal service, upon all bonds or notes for the direct payment of money or property, became the most common and frequent course of proceeding in our courts. It was the usual mode of collecting debts.

In 1839, the legislature passed an act to amend the acts regulating practice at law. By the fourth section of this act, “All actions at law, founded on bonds, bills or notes, in the circuit court, shall be tried and determined at the return term, if the defendant shall have been personally served with process twenty days before the commencement of the term, unless good cause for a continuance be shown.” This court, in the case of Southack v. Morris, held that this fourth section did not interfere with or apply to the time of pleading and trial in the petition and summons act. Here, then, was another innovation. Actions founded on bonds, notes or bills, at common law, not in the mode of petition and summons, but in the old way of declaration, &e., when the defendants were served with the process personally, twenty days before the return of the writ, were to be tried at the first term ; and if the defendants in such actions were served personally with process twenty days before the commencement of the term, or were served less than twenty days and more than fifteen days, and failed or refused to plead to the actions, judgments were rendered against them by default. Thus stood the law up to 1847, when the legislature declared that, “Hereafter no special plea shall be pleaded in any action brought or pending in any courts of this state.” In this law there is nothing said about the time of service of the writ or process. In all cases where one or more parties are sued, if they design to make defence to the merits of the action, they shall plead the general issue, and, under the same, all and every matter of defence, without reference to the form or nature of the plaintiff’s action or declaration, may be given in evidence. Any person holding any bond, note or instrument of writing, for the payment of money or property, may institute suit on the same, in any circuit court or court of common pleas, having competent jurisdiction, without filing any petition in debt or declaration in writing on the same.

The form of the general issue, under this act was, “the said defendant comes and defends the demand of the plaintiffs.” Here, defence still must be to the merits. Here, too, if the defendants, having been served with process, under the provisions of the previous acts, still neglect to plead this general issue, judgment will be rendered against them by default. Having been served with process either fifteen days or twenty days, as the case may be, if the defendants fail to plead, and that to the merits, too — for this statutory general issue is a plea to the merits — judgment will be redered against them by default. So was the law up to 1849, when the new code of practice was adopted. This code requires both the petition and answer to be sworn to, and if the answer presents no defence in law to the matters in the petition, this court has unanimously decided that it is proper and right that such answers be stricken out. When they are stricken out, and no sufficient answer be filed to the petition, whether there has been twenty days’ personal service or only fifteen days’ service, personal or constructive, the plaintiff is entitled to his judgment by default for want of an-answer. This has been the uniform practice — the uniform construction given by our courts to the various acts of our legislature, territorial and state, from 1807 up to this timo. Whenever a party, sued and served with process, fails to make a proper defence by plea, judgment has been given against such party, at the return term, as a matter of course.

A party served fifteen days before court, who fails to plead, is liable to have judgment rendered against him for want of a plea. Judgments by default have been usual during all this time, from 1809 to 1855.

Let a person examine carefully all the acts on this subject, even in force in our state, and he will come to the conclusion that judgment by default is the necessary result of failing to plead properly at the return term. I mean, plead to the merits — plead so as to answer the declaration, whether the plea can he afterwards supported by the facts or not. It must contain enough to put the cause at issue ; and whenever a plea is demurred to, the demurrer sustained, and no further plea tendered or filed in the case, judgment has been given at the return term. Where the plea has been stricken out or regarded as a nullity, judgment has been given at the return term, if no other or better plea is offered. If a plea is bad or frivolous, the plaintiff might either demur or treat it as a nullity, and have judgment by default at the end of the term.

Now, under our present code, is an answer which presents no defence — a mere frivolous or evasive answer — because sworn to, to be regarded as a sufficient defence for a continuance, because the defendants have not been served, personally, twenty days before the commencement of the term ? Why should an answer, which is a mere nullity, now have the effect which a plea — amere nullity before — had not? Under the present code, the merits are always supposed to be the matters to be tried ; they are set forth under oath, and when the defendants have no merits to offer in defence of the action, why should that be a reason for further indulgence? Will it do to answer, because, if you do not allow this to be a cause of continuance, men will make out they have a good defence by falsehood ancl perjury? Surely, this is a poor answer to a court of justice. If the law requiring a man to swear to the truth of his answer will not let him make a false answer, what harm does it do him ? A good man will tell the truth — a bad man will state falsehoods in his answer, showing he has a meritorious defence, when, in fact, he has none. The bad man gets a continuance, the price of his perjury; while the good man suffers judgment against him for an honest debt. Let the legislature remedy this evil, if it be one; the courts can not.

Under the new code, the plaintiff can not demur to the defendant’s answer. He must move to strike it out, if the facts set forth amount to no defence. Here the facts set forth by these defendants below amount to no defence. The plaintiffs, on motion, have the answer stricken out; no further answer is offered, and the court renders judgment by default against them. The record shows the service of the writ was more than fifteen days in this case; on one defendant, personally; on the other, constructively. In the case of Holland v. Hunter & White, (15 Mo. Rep. 475,) the court unanimously held that, under the act of 1849, (the new code,) in a petition on a promissory note, for the payment of money, in which the defendant has been regularly served by leaving a copy at his usual place of abode, fifteen days before the return day of the writ, and he fails or neglects to answer, the court may render judgment against him by default. This case is conclusive upon the question here raised — an improper or frivolous answer, stricken out by the court, on motion, loaves the 'defendant as though he had failed and neglected to answer at first.

As to the policy of requiring the parties to swear to their petitions and answers, this court is not called upon to express an opinion. Sufficient for us if we can find out and declare what the law is, not what it ought to be.

In our view, and in our present opinion, the principles set forth herein cannot be properly charged as an innovation upon the long settled and established practice and rules of procedure in our courts. Rut let the doctrine that an evasive answer, that any frivolous answer, that any answer offering a mere pretence of defence, although stricken out, yet entitles the defendant to a continuance, unless there has been twenty days’ personal service, and I feel assured that such will produce not only an overthrow of the long established and received opinions of the courts and the profession, but will be productive of mischievous innovation.

Judge Gamble concurring, the judgment below will be affirmed ; Judge Scott dissenting.

Scott, Judge,

dissenting. This record presents the question whether, under the present practice act, there should be a judgment in every case at the return term of the writ, in which there has been fifteen days’ service of process, in the event the answer shall be judged bad on demurrer, or is stricken out, on motion.

The sixth section of the fifth article of the practice act of 1849, directs that, “ in all cases where the petition is founded solely upon a bond, bill or promissory note, for the direct payment of money, the plaintiff may have a trial at the return term ; provided the defendant has been served with process, by delivering him a copy of the petition and writ twenty days before the return day.”

The second section of the sixth article of the same act requires the demurrer or answer to the petition “to be filed within six days after the return day of the summons, if the term so long continues and it also requires that, in the cases above mentioned, “ when process has been served twenty days’ before the return day, there shall be a trial at the first term, unless, for good cause, a continuance is granted ; and in these cases, the demurrer or answer must be filed within the first two days of the return term.” So the statute is silent as to the time at which trials in ordinary cases shall be had. By requiring them, however, in particular cases to take place at the first term, an implication arises that, in other cases, such would not be the rule. Matters not provided for in the act of 1849, remain as they were before its enactment.

Under the former practice act, trials could be had at the first term in the eases in which they can be had at the first term, under the present act. In all other cases, they were required to take place at the second term. In all but the excepted eases, the defendant, by filing a plea and thereby signifying his desire that the trial should be postponed, obtained a continuance, as a matter of course. This practice was established, and, we may presume, influenced business men in making their engagements.

The difficulty arises from the fact that, under the present law, all answers to a petition must be under oath. Under the former system, any plea, if available in its terms, unsupported by an oath, would entitle a party to a continuance. This entered into and formed a part of the plan for the collection of demands, and was designed to give the defendant time, if ho desired it. Now, ¡ s the truth of an answer must be sworn to, there are ma y who want a continuance that will not swear to the truth of a strictly legal answer, yet will put in an evasive one, consiste u w h truth, as was dono in the present case. If this answer is made way with, and judgment by default is taken at the return term, the effect will be to overturn the system long established for the collection of demands, and make them all, liquidated and unliquidated, collectable without regard to the time of the service of the process ; provided it has been fifteen days before the return term, in a period, at the longest, a little more than six months ; and, in cases where the debtor has no real estate, in thirty or forty days.

This question involves higher considerations than the mere forms of pleading. The system for the collection of debts, established in any state, is a matter of considerable importance, both to the debtor and the creditor ; and when it has been fixed and known, so that it may have entered into the calculations of business men, on making their engagements, should not be disturbed for trivial causes. It is of too much importance to be overturned by rules of practice or pleadings, when, so far from there being any thing in the law, which shows that any such measure was contemplated by the legislature, the implication is the other way. The most upright men, in contracting debts, look to tho laws enforcing their collection, and act accordingly. They base their calculations on such grounds as would be a justification to any honest and prudent man. Knowing that casualties and misfortunes may defeat the most just expectations, they will take care that, should they be disappointed, and the worst should come, that they will be enabled to meet their liabilities, when enforced by the law. On the one band, while there should be no unnecessary delay interposed in the collection of debts, on the other, sound policy requires that it should not be in the power of the creditor to sacrifice his debtor, without affording him a reasonable time to meet engagements, whose violations may have been superin-duced by misfortune. It would tend to the sacrifice of estates, and the ruin of families, if the law did not interpose a little delay to the claims of a creditor on an honest debtor overtaken by casualties beyond his control. This disturbance of the system of collection will, sooner or later, lead to a reaction, which all experince has shown will militate against the creditor. It is for the interest of creditors that the present system should remain as it is, for it can not be changed but to their ultimate detriment. If a system of collection, just to the creditor, and satisfactory to the debtor, be long established and becomes well known, it will so intertwine itself with the transactions of men, that, in times of pecuniary distress and embarrassment, there will be less likelihood of its being altered to the injury of the creditor.

These observations have been made, because the considerations suggested in them have been wholly overlooked in the argument of the case, and it was made to turn on rules of pleading and practice, regardless of the consequences its determination may have on the system established for the collection of debts. The assertion may be hazarded, that, had the legislature foreseen that the result contended for by the plaintiff would have been produced by the act, it would never have become a law.

A serious objection to such a construction of the law as will make all cases triable at the first term, unless there is a valid answer, supported by the oath of the party, is the temptation to false swearing which will thereby be held out to suitors. It is unwise to tempt an oppressed debtor to swear to a plea, in order that he may obtain delay. There is no policy in multiplying the temptations to falsehood in courts of justice. Law should not be so expounded as to oppress the honest and conscientious, while relief is given to the less scrupulous.

In my opinion, the judgment below ought to be reversed.


author: Scott, Judge,

text:
    Mason & Farley, Respondents, vs. Stiles & others, Appellants.
    1. The lessee of a store, blown up with powder by the wanton or reckless act of his clerk, is liable to the landlord for the value.

      Appeal from, Clinton Circuit Court.

    This was an action begun in the Platte Circuit Court, taken by change of venue to the Weston Court of Common Pleas, and afterwards to the Clinton Circuit Court, to recover the value of a store blown up with powder by the act of a clerk of the defendants, while it was in their possession as lessees.
    The petition stated that the plaintiffs rented to the defendants a store in the town of Farley ; that defendants were in the actual occupation of the store on the 22d of July, 1851; that they had in their employment as clerk one John Hyland, who acted for them as their agent in selling goods and taking care of the store; and that on said 22d of July, by the “ carelessness, imprudence, negligence and recklessness” of said Hyland, the store was blown up with powder and entirely destroyed.
    The defendants, in their answer, alleged that the store was not blown up by the “ carelessness or negligence” of Hyland, while he was engaged in their business, but by his “ wilfully and intentionally” applying a cigar to a can of powder.
    At the trial before a jury, it appeared in evidence that Hy-land was a boy and a clerk of defendants; that he and other young men were smoking cigars in the store one evening ; that he took a can of powder, placed it on the counter, with the top off, and said, “ look here, boys, see me touch it offthat he then held his cigar over the can, and either threw it into the powder, or sparks fell in, the witnesses could not tell which ; and an explosion took place which blew up and destroyed the store.
    The court gave the following instruction asked by the plaintiffs :
    1. If the jury believe that John Hyland, while he was acting as clei'k, and in the employment of defendants, carelessly, negligently, or recklessly dropped fire into the powder and blew up the house, not intending to do so at the time, although the act may not have been done by the consent of the defendants, they must find for plaintiffs the value of the injury done.
    The following instruction was given for the,defendants :
    1. Although the defendants would be liable for the negligent conduct of Hyland, while engaged in the business of, and having in view the business for which he was employed by defendants, yet, if he wilfully or intentionally set fire to the powder, or if, at the time he set fire to the powder, he was not engaged within the business of his employment, but had in view purposes of his own, the jury will find for defendants.
    The following instructions, among others, asked by defendants, were refused!:
    3. In order to render the defendants liable, Hyland must have been engaged in the transaction of defendants’ business, and must have been acting within the scope of his employment.
    4. Although John Hyland was in the general, employment of defendants as clerk, yet, if the particular act, which resulted in the destruction of the house, was not done in the discharge of his duty as employee of defendants, they are not liable.
    5. Defendants are not liable for any wrongful act of Hyland, unless the same resulted from some act done by him as their servant. They are not liable for wilful injuries done by him out of the line of his duties as their servant.
    8. Although the jury may believe that Hyland was employed to take care of the house as well as to sell goods, and that while he had charge of the house, it was destroyed, yet, if they find that its destruction was caused by his wilfully setting powder on fire, from malice, for his amusement, or from mere recklessness, they will find for defendants.
    The jury returned a verdict for the plaintiffs.
    The defendants filed motions for a new trial and in arrest of judgment, which were overruled, and they appealed.

      Abell & Stringfellow, for appellants.
    1. The court erred in the instructions given and refused, and the error consisted in not making the liability of the defendants for the act of their servant depend upon its being done in the course of their business ; but simply upon its being done while he was in their employment. (18 Mo. Rep. 865. 19 Wend. 343-5. 17 Mass. 494.) 2. This cannot be construed into an action for not returning the premises in good repair. The petition is not framed on any such view. It does not show that the lease had expired before suit brought — nor negative the possibility of defendants repairing the premises — nor show plaintiffs’ right to sue for injury to the reversion or for not returning the premises in good repair. The only question involved in the pleadings and instructions turns upon the relation of master and servant; and if plaintiffs’ only right to recover be that of landlord against tenant, the jury were misled. (18 Mo. Rep. 403.) 3. The petition does not show the relation of master and servant in the act complained of. It shows the act was wilfully done.

      H. M. Vories, for respondents.
    1. This action is not founded upon the relation of master and servant, but of landlord and tenant, which imposes on the tenant the obligation to take good care of the premises leased ; and if the property is destroyed, either by the careless or reckless use made of it by the tenant or his servants entrusted by him with its possession and control, he is liable to the landlord for the injury sustained. (Story’s Bailments, § 400-1.) A reversioner may maintain an action against his tenant for waste committed even by a stranger. (4 Kent, 77, and authorities cited. 1 Chitt. PI. 160.) It was not necessary that the petition should show that the lease bad expired, as the landlord can sue for an injury to the reversion during the pendency of the lease. (1 Chitty, 160.) 2. But if the action were founded on the relation of master and servant, the instructions given fairly placed the whole case before the jury. While it is admitted that the master is only liable to third persons for the injurious acts of his servant while in the discharge of the duties assigned or the execution of the authority given him ; yet, it is not necessai’y that the servant should be in the proper and profitable performance of his duties or execution of his authority. (10 Mo. Rep. 136. Story’s Agency, § 452.) 3. The petition is sufficient after verdict, under the new practice act. (Sess. Acts of 1849, p. 80, §6.)
   Scott, Judge,

delivered the opinion of the court.

The principle contended for by the defendants is correct in the abstract, but it has no application to the case under consideration : that principle is, that the master is only liable for consequential damages, resulting from the trespass of his servant, when the servant was in the course of his employment, and by an injudicious, negligent, or unskilful act, done in furtherance of his master’s business, the injury resulted to the plaintiff. This principle is stated in the case of Douglass v. Stephens, (18 Mo. Rep. 367.) But it does not apply when the wanton act of the agent causes injury to property bailed to his principal. Here another rule applies. If a merchant sends his clerk on a collecting tour, and on his way he wantonly fires his pistol and kills a horse in an adjoining field, the merchant will not be liable for this trespass. But, if the clerk wilfully shoots down the horse on which he is riding, and which the merchant has hired from another, the merchant will be liable to the owner of the horse. So, if the clerk, Hyland, while in the employment of the defendants, had wantonly destroyed a house with which his employers had nothing to do, they would not have been liable. But, inasmuch as the house was let to the defendants, it was their duty to take care of it, and they cannot shift this responsibility on those whom they may employ. To an action of waste, it is no defence that a stranger did it; the defendant may bring trespass against the stranger and recover his damages. (Bull. N. P. 120. 2 Ins. 145.)

No question was made that the wrong done to the plaintiffs was not actionable in itself. If it is true that a man shall be taken to intend that which he does, or which is the immediate and necessary consequence of his act, then the waste done in the present case was voluntary. But whether voluntary or permissive, is a matter of indifference ; for, though it be stated in some of the books that an action on the case will not lie for permissive waste, yet the idea is not thereby intended to be conveyed that such waste is dispunishable. (4 Kent, 79.) Tenants are answerable for waste committed by a stranger, and they take their remedy over against him; and it is a general principle that the tenant, without some special agreement to the contrary, is responsible to the reversioner for all injuries amounting to waste done to the premises during his term, by whomsoever the injuries may have been committed, with the exception of the acts of God, and public enemies, and acts of the reversioner himself. The tenant is like a common carrier, and the law, in this instance, is founded on the same great principles of public policy. (4 Kent, 77.)

The doctrine of the common law, with respect to accidental or negligent burning, has nothing to do with this case, as the destruction of the house, in this instance, was neither accidental or negligent. It was a wilful and wanton act, as much so as if it had been done with powder and cannon ball. (3 Coke Litt. note 377, fol. 57, a, old ed.) So, though the common law, which exempted tenants from actions for accidental or negligent burning, may be considered as in force here, although not restored by the act of 6 Ann, ch. 31, which enacted, that no action should be prosecuted against any person in whose house any fire should accidentally begin, the common' law being supposed to be superseded by the statute of Gloucester, making tenants liable for waste, without any exception. Now, though the statute of Gloucester is in force here, which took away the common law in relation to accidental fires, and though the statute of Ann has not been re-enacted, which restored the common law in that respect, yet, giving the defendants the full benefit of the common law, they are not protected from a recovery in this action.

There was a point made as to the tenant’s right to rebuild. Had the premises been repaired before suit brought, it would have been a matter of defence.

The petition shows, sufficiently plain, that the plaintiffs seek damages for the destruction of a house which they had leased to the defendants. That they have specified the agent by whom the wrong was actually done, was not objectionable under the old system of pleading, and is certainly less so under the present one. (Chit. 382.)

The instruction given for the defendants was erroneous, yet, as notwithstanding such instruction, the verdict was against them, the judgment will be affirmed,

with the concurrence of Judge Ryland.


text:
    Henderson’s Administrator, Respondent, vs. Henderson, Appellant.
    1. A judgment for the plaintiff will not he reversed for an insufficient finding of the facts, if the matters set up in the answer constitute no defence.
    2. In a suit by an administrator upon a note of his intestate, it is no defence that the county court'had allowed a former administrator, upon settlement, credit for the amount of the note.
    3. An allegation in the answer that the intestate, before his death, “ gave the note to the defendant, and made arrangements to have it delivered up to him, which was neglected to be done,” is no defence; these facts constituting neither a donatio causa mortis, nor a valid gift or equitable release.

      Appeal from Platte Circuit Court.

    Action on a note by John Henderson’s administrator de bonis. non against Joseph Henderson. The answer set up these de-fences: 1st, That John Henderson, before his death, “gave the note to the defendant, and made arrangements to have it delivered up to him, which was neglected to be done 2d, That the county court of Platte county, having probate jurisdiction, “ released the executor of the estate of John Henderson, and by its judgment determined that the defendant was not liable for the payment of the note and, 3d, The statute of limitations. But this last defence was abandoned.
    The Circuit Court, upon a trial without a jury, found the facts, but the finding was silent as to the matters relied upon in the answer. Judgment was rendered for the plaintiff, and the defendant appealed.
    Hayden, Morrow & Davis, for appellant.

      H. M. Vories, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

I. There is no error in this record except in the finding of the facts, which is clearly insufficient. Indeed, there is no finding as to the matters set up in the answer in bar of the plaintiff’s recovery upon the note, which are the only facts put in issue by the pleadings, and, therefore, if these matters constitute a good defence, the judgment must be reversed ; but if they would not avail the defendant, assuming them to be true, the defective finding cannot prejudice him, and is no ground for a reversal. We proceed to examine the several defences relied upon, in connection with the defendant’s proof.

2. According to his own showing, he is not protected by the statute of limitations, and it is very clear that the order of the county court, referred to in the answer allowing the former administrator credit in his administration account for the amount of the note and interest, is no adjudication of the rights of the respective parties to it, so as to conclude either debtor or creditor. It was made in an ex parte proceeding by the former administrator for the purpose of obtaining this credit against the corresponding charge in his inventory, and, in a proceeding between the payor and payee, instituted for the purpose of determining their rights in reference to the note, and what was then adjudged, most clearly does not conclude the present parties.

3. The real question, however, intended to he litigated in this record, we suppose, is, whether what passed on the part of the father amounts in equity to a valid gift of the note, or, which is the same thing, to an equitable release of the debt.

The transaction was not pleaded as a donatio causa mortis, and the defendant’s own proof shows that it was not a gift of that character. It was intended, if a gift at all, as a present, absolute gift, not as a testamentary disposition — a conditional transfer, to take effect when, and in ease the donee died, which distinguishes the latter from the former species of gift, and is essential to a death-bed donation. Besides, there was no delivery, and without delivery there can be no such gift; and we do not think there is any ground for the opinion that it amounted, in equity, to an extinguishment of the debt, either as a valid, voluntary assignment of it, or as an equitable release. We refer now, for a moment, to the progress and present state of the English law, upon the subject of disposing of dioses in action, contingent rights and possibilities. By the common law, these interests could not be granted to a stranger; but, as Lord Cowper remarks, in Thomas v. Freeman, (2 Vern. Rep. 563,) “the law was not so unreasonable as not to allow them to be released to the debtor or the party in possession.” This rule, however, never found favor in the court of chancery, and a device was resorted to there, in order to get rid of it. The assignment being void at law, as a present transfer, was entertained in equity as an agreement to transfer, which the court would enforce, ( Wright v. Wright, 1 Ves., sen., 411,) and the maxim of the court, “ what ought to be done is to be considered as done,” being applied to the transaction, the beneficial ownership of the debt was, in contemplation of a court of equity, vested by the assignment in the assignee, and both debtor and creditor were, to some extent, converted into trustees for him, the debtor being bound, after notice, to pay to him alone, and the creditor to allow him the use of bis name in the collection of the debt. Equity, however, would not compel the execution of an agreement, unless it was founded upon a valuable consideration, and so voluntary assignments were not aided in chancery, but a different expedient has been resorted to in reference to them. Although equity will not lend its aid to enforce a voluntary agreement, yet, when there is a trust actually created — a constituted trust — the court will enforce its execution against the trustee, in favor of a cestui que trust, who is a mere volunteer. In Ellison v. Ellison, (6 Ves. Rep. 661,) Lord Eldon thus states the principle: “I take the distinction to be, that, if you want the assistance of the court to constitute you cestui que trust, and the instrument is voluntary, you shall not have that assistance for the purpose of constituting you cestui que trust, as upon a covenant to transfer stock, &c., if it rests in covenant and is purely voluntary, this court will not execute that voluntary covenant; but, if the party has completely transferred stock, though it is voluntary, yet, the legal conveyance being effectually made, the equitable interest will be enforced by this court.” The early cases, in which this principle is recognized and acted upon, were all cases where the legal interest in the property was transferred in pursuance of an antecedent agreement, or direction, declaring the trusts, or as part of the transaction creating the trust, (Vice Chan. Wigram in Meek v. Kettlewell, 23 Eng. Chan. Rep. 470,) and, of course, they are not applicable where the legal interest was not and could not be transferred; but in ex parte Pye and ex parte Dubost, (18 Ves. Rep. 149,) Lord Eldon went a step further, and said, “ it is clear that this court will not assist a volunteer; yet, if the act is completed, though voluntary, the court will act upon it. It has been decided that, upon an agreement to transfer stock, this court will not interpose; but, if the party has declared himself to be the trustee of that stock, it becomes the property of the cestui que trust, without more, and the court will act upon itand, in that case, he accordingly held that the acts of the owner of the stock, which were relied upon as a gift of it, were equivalent to a formal declaration of trust, and, although purely voluntary,' passed the beneficial ownership, whether there was a change of the legal ownership or not. In the subsequent eases of Wheatly v. Parr, (1 Keen, 551,) Collinson v. Patrick, (2 Keen, 123,) and McFaddin v. Jenkins, (1 Hare, 458,) it is settled that a formal declaration of trust by the beneficial owner, or conduct on his part, equivalent to such a declaration, is sufficient in equity to effect a change of property, without any change of the legal title, or any consideration whatever for the transfer; but the distinction is still kept up between such transactions and a formal assignment. Two cases decided by Vice Chancellor Wigram, in 1842, illustrate this distinction, and state the grounds of it. In Meek v. Kettlewell, (1 Hare, 466,) he decided that a voluntary assignment, by deed, made by the cestui que trust, of a contingent reversionary interest in a. fund standing in the name of trustees, was not valid in equity as a transfer of the fund ; and, in McFaddin v. Jenkins, before referred to, where the donor directed his debtor, through third person, to hold the money he owed him in trust for th®’ plaintiff, and the party accepted the trust, and paid a small part of the debt to the plaintiff, and the creditor himself never after-wards demanded the debt, the same judge held that these acts constituted the creditor a trustee for the plaintiff in respect to the debt. In reference to the difficulty of reconciling the cases upon this subject, he remarked, in the last case: “Perhaps they are to be reconciled and explained upon the principle that a declaration of trust purports to be and is, in form and substance, a complete transaction, and the court need not look beyond the declaration of trust itself, or inquire into its origin,, in order that it may be in a position to uphold and enforce it.; whereas, an agreement or attempt to assign is, in form and nature, incomplete, and the origin of the transaction must be inquired into by the court, and where there is no consideration, the court, upon its general principles, cannot complete what i.t. finds incomplete.”

The idea, however, that an assignment operates by way of agreement, and therefore cannot have effect as a perfect gift, has, it would seem, been at length entirely overturned in England, by the case of Vogle against Hughes, decided upon appeal in the court of chancery, as late as January, 1854, where it was held that a voluntary assignment by deed, of a re-versionary interest in stock standing in the name of trustees, with notice to them, was a valid disposition in equity of the fund on the part of the cestui que trust. (23 Eng. Law and Eq. Rep. 271.) The judge who delivered the opinion of the court, speaking in reference to the assignment, says: “It is not an agreement, it is an absolute assignment by deed, purporting to transfer the estate or interest of the assignor to the assignee. As between them, the transaction is complete. Notice was given to the trustees, and that completed it as to third parties — established the right of the assignee on a question of priority, and protected her against any fraudulent receipt by the assignor.” ‘ ( The progress of law, as a science, keeping pace, although not uniformly, with the advancement of civilization and wealth, has sanctioned modes of alienation and enjoyment of property, both real and personal, which were prohibited by the common law.” “ By force of the deed of assignment, the equitable right was transferred by Mrs. Kurner to Miss Noble — the transaction was completed by Mrs. Rurner’s execution of the deed, and no valuable consideration was necessary to support the assignment.”

This case, of course, is not directly applicable to the assignment of a legal chose in action, but there is no distinction in reason between them, and none, it is believed, has ever been taken in the previous cases. And it may, perhaps, now be considered the doctrine of English equity, that, where a trust is constituted, the court will act upon it in favor of a volunteer ; that a person may constitute himself a trustee for another, without any change of the legal ownership, and that any act done by the beneficial owner of the fund, amounting, unequivocally, to a declaration that an interest in his property should thereby become vested in another, whether the act relied upon be an assignment, or a formal declaration of trust, or some equivalent act — notice of which is communicated to the person in whom the legal interest is, and to the cestui que trust — is a valid creation of a trust in favor of a volunteer.

We return now to the facts of the present case, for the purpose of determining whether the matters relied upon constitute a perfect gift of the note, or an equitable release of the debtor. The facts stated in the answer are, that the father, some short time before his death, gave his son the note, and made arrangements to have it delivered to him, which was never done ; and the proof was, that the father, at the time the note was given, loaned his son a hundred dollars, saying he gave it to him, but took the note, so that, if he should ever need the money, he might have it paid back to him ; and that afterwards, and a short time before his death, he told a neighbor he never intended his son should pay the note, and requested him to tell his son to come to his house and have the matter arranged — {to come and get the note, as witness understood it.)

Here, it is to be observed, is no instrument of assignment, nor any formal declaration of trust, nor is there any thing amounting to an unequivocal declaration, even in words only, that the debt should thereby become the property of the son, much less, in words, accompanied by corroborative acts done, or acts omitted, as was the case in McFaddin v. Jenkins, before cited. We think it very clear that every thing here done and said fails to come up to a completed transaction — a perfect gift — but, at the utmost, amounts only to an intended bounty, resting in promise, not yet completed, but to be afterwards executed by a surrender of the note, when the son should visit the father to receive it. What was said by the father, when the note was given, of course could not be received against the effect of the written instrument, but was given in evidence, we suppose, in corroboration of the alleged subsequent gift.

In re Campbell’s estate, (7 Barr, 100,) a childless old man, intending to die intestate, calls for his bonds and notes, in order to distribute them among the objects of his bounty, and when they were transferred, he asks whether they are all, and is told by his wife they are all, except those now in controversy. She asks what is to be done with them, and he told her to burn them. This was not done, and it was held that the notes were not discharged, but constituted a part of the intestate’s estate, the transaction not amounting to a release or a valid gift of them. As to the equitable release, although there are acts and declarations on the part of the creditor, that will be considered in equity equivalent to a release of the debt, yet, a mere acquittance, by words in the present tense, unaccompanied by acts, is not sufficient to induce a court of equity to deprive a creditor or his representatives of the right of enforcing their legal remedies against the debtor.

In Richard v. Syms, (2 Eq. Cas. Abr. 617,) the mortgagee said to the mortgagor: “Take back your writings, I freely forgive you the debt.” The mortgagor accordingly took them, and it was alleged the mortgagee, at the same time, made a verbal statement to the mother, to the effect that he had intended to forgive the debt. Lord Hardwicke considered that, if the matter were proved, the debt would be extinguished.

In Gilbert v. Wetherell, (2 Sim. & Stu. 258,) the father, upon his death-bed, desired his daughter to bring him his pocket-book, which she did, and he took out of it the son’s promissory note for £10,000, and put it into the hands of the daughter and desired her to burn it, which she immediately did, in his presence. When it was burnt, he said, “ now Thomas owes me £11,000,” (there being other demands against the son,) and this was held to amount in equity to a release of the debt.

But in Tuffnell v. Constable, (8 Sim. Rep. 69,) where the testator had signed a memorandum acquitting the plaintiff of £700 out of £1700, due to him on the plaintiff’s bond, stating, verbally, that in consideration of such release, he had revoked a legacy of £700, given by him to the plaintiff, by his will, and the plaintiff, upon being sued, filed a bill for relief as to the £700, — Ihe chancellor refused it, saying that he was a volunteer, and had no right to come into equity.

In the present case, there were no words of present acquittance, much less, such words accompanied by acts, such as a surrender or destruction of the note, to relieve the transaction from any uncertainty as to the intention of the party to forgive the debt and authorize the court to declare that the transaction amounted to a release. The whole transaction looked to the future, and was not a present release of the debt.

The result is, under every view of the case, that the judgment must be affirmed, and it is so ordered, with the concurrence of the other judges.


author: Leonard, Judge,

text:
    Sartin, Plaintiff in Error, vs. Saling, Defendant in Error.
    I. Evidence that the defendant advised a party, who either held or had disposed of a horse bought in good faith from a person having no title, not to make restitution upon demand, until he had- inquired further into the mat ter, will not warrant an instruction based upon the hypothesis of his assenting to a continuance of the detention.

      Error to Moniteau Circuit Court.

    This was an action begun by Sartin against John Saling and Henry, his son, who was a minor, to recover the value of a mare, alleged in the petition to have been “ seized, carried away and disposed of by the defendants to their own use.”
    At the trial, the plaintiff offered evidence tending to show that, being the owner of the mare, he sold her to one Scott, who was living with him, upon condition that no title should pass until Scott cleared certain land, which he failed to clear ; that, by his permission, Scott took the mare to go to the town of California, and there sold her, and that afterwards she was seen in the possession of Henry Saling; that, upon demand made by plaintiff for the mare, Henry said he had traded her off, but rather than have any difficulty “ would give her up ;” and that his father, who was present, then said he believed Scott owned the mare when he sold her, and advised Henry not to give her up “ until he had inquired further into the matter.”
    The evidence of the defendants tended to show that the sale of the mare to Scott was unconditional, and that she passed from him through two or three intermediate purchasers to the defendant, Henry, who traded for her.
    Upon this evidence, the Circuit Court gave the following instruction for the plaintiff, numbered as the second :
    “ Although John Saling may not have traded for the mare, yet, if Henry Saling did, and John, the father of Henry, encouraged him to keep her, or trade her off, or not give her up, he is equally liable with Henry Saling.”
    There was a verdict for the plaintiff. During the pendency of a motion for a new trial, the suit was dismissed as to Henry Saling. John Saling afterwards sued out this writ of error.
    Parsons, for plaintiff in error.
    John Saling’s advice to his son cannot make him liable as a co-trespasser, either in the caption or detention of the mare. (11 Phill. Ev. 187.)
    Gardenhire, for defendant in error.
    Every one who advises or countenances the commission of a tort before it is done, is liable, although it is not done for his benefit; and so if he advise or countenance its continuance. It is only when the approval is not until after it is done, that it is necessary to show it was for his benefit. (1 Chitt. PI. 67. 11 Barb. Sup. Ct. Rep. 642. 7 Mo. Rep. 175. 10 Wend. 110. 8 Pick. 333. 2 Litt. 240. 5 Ohio, 231.) In this case, the jury found that Henry Saling had not parted with the mare when demand was made, as under another instruction given, thi3 finding was necessary to the verdict; so that John Saling advised a continuance of the trespass, and it was not necessary to show that it was for his benefit. But it was shown. He was the father of Henry Saling, who was a minor, and was entitled to his earnings.
   Leonard, Judge,

delivered the opinion of the court.

The second instruction, given at the instance of the plaintiff, is erroneous. The plaintiff, according to his own proof, let Scott have the mare, either under a loan or upon a conditional sale, that was to vest the title in him upon his doing certain work he had contracted to do for the plaintiff. The mare was afterwards seen in the possession of Henry Saling, a minor son of the defendant, and originally a co- defendant with him. It appeared on the part of the defendant, that after Scott got possession of the mare, he sold her, and that Henry Saling got possession of her from a third person, after she had passed through several purchasers, and then sold her himself. Upon the plaintiff’s demanding her of the son, which, according to the plaintiff’s proof, was after the latter had “ traded her off,” the defendant said that, from what he had heard about it, he believed she was Scott’s mare, at the time of the trade, and advised Henry not to give her up until he had inquired further into the matter. This was the evidence to which the instruction was applicable, and in reference to which its propriety must be judged of and determined.

Undoubtedly, all who wrongfully contribute, in any manner, to the commission of a trespass, are responsible as principals ; and those who improperly advise or encourage the wrong, or, when it is committed for their benefit, subsequently agree to it, are equally liable with those who put their own hands to the act. In this matter, the law does not distinguish between different shades of guilt, or different degrees of efficiency, in effecting the wrong, but holds every one, who has improperly contributed to it, responsible for the whole injury.

There is no aspect of the case, however, in which this advice ought to render the father liable for the alleged wrong of the son. The rule adopted in Massachusetts, which seems also to be the rule of the English law, is, that one who acquires the possession of personal property from a bailee of the owner, wrongfully parting with the possession, is liable in trespass to the

owner for sucb taking, although it was in good faith, and without any knowledge of the bailee’s breach of duty in disposing of the property. (Stanly’s adm’r v. Gaylord, 1 Cush. Rep. 586.) But in New York, trespass will not lie against one who comes to the possession of the goods by delivery, and without any fault on his part, although the person who made the delivery had no title, and was a wrongdoer; and the only remedy there, against such a person, is by an action of trover, after a conversion by a sale or otherwise. (Barret v. Warren, 3 Hill, N. Y. Rep. 350. Storm v. Livingston, 6 Johns. Rep. 44.) If the son had disposed of the mare before demand made upon him, which was the time of the father’s interference in the matter, the wrong was then consummated, under either view of the law, and the father’s advice could not have contributed to it, but, at the utmost, could only be considered as advice not to make amends until, upon further inquiry, he should be satisfied of his liability; and there is no authority whatever, for saying that the trespass of a minor son is for the father’s benefit, and that, therefore, the advice given subjected the father to responsibility on the principle of a subsequent assent to a trespass committed for his benefit. If, however, the mare was then in the son’s possession, there was nothing improper in the father’s conduct, under the circumstances of the case. Certainly, it was the duty of the son to restore the mare to the plaintiff, if she belonged to him, and he was not advised otherwise. The advice given was, in effect, to examine into the matter, and act accordingly — restore the mare, if she belonged to the plaintiff, but otherwise, resist the demand ; in a word, to act as every sensible man, under the circumstances, would have acted ; and there is neither authority nor reason for subjecting the father to liability for such conduct, as having thereby improperly contributed to the injury.

The instruction of the court was given under a different view of the law, and, when applied to the evidence, must have misled the jury. The judgment must, therefore, be reversed, and the cause remanded.


text:
    Mason, Appellant, vs. Pitt, Respondent.
    1. The failure of the proprietor of a town to record a plat of it, will not prevent the title from passing to a purchaser. The statute imposes no penalty on the vendee.

      Appeal from Weston Court of Common Pleas.

    Action for the possession of lot 48 in the town of Winston. The petition alleged that a tract of land was patented to Joseph Winston ; that Winston conveyed the land, “ with the town of Winston thereon situate,” to William M. Macey ; that Macey conveyed to plaintiff the lot in controversy, by a deed annexed to the petition ; and that defendant had wrongfully entered into possession of said lot.
    The answer admitted the patent to Winston and the conveyance from him to Macey, and that Macey executed and delivered to plaintiff “ an instrument purporting to be a deed of conveyance of lot 48” in the town of Winston, but denied that there was any such town situate on the tract of land patented to Winston, or that there was “ any such lot on said land, so known and described in any plat or survey of said town;” and alleged that the deed to plaintiff conveyed no title and was void. The defendant admitted that he entered into possession of a lot on the tract patented to Winston.
    The cause was tried without a jury, but the record contains no finding of the facts, other than a statement in the entry of judgment that “ the plaintiff failed to prove that he was the owner of the lot named in his petition, or that there was any such lot or town lot upon the tract of land named in plaintiff’s petition, or that defendant had ever been wrongfully in possession of the lot described in the petition.”
    The bill of exceptions showed that the plaintiff at the trial offered to read in evidence the deed annexed to his petition, and that it was excluded, but whether for the reason that the original was not accounted for, or that it passed no title, because the plat of the town was unrecorded, was a matter about which the counsel seemed to differ, and which the bill of exceptions did not show.
    Mr. Adams, for appellant.
    1. There is no such finding of facts as is contemplated by the new code. The finding should be written and signed by the judge and filed in the cause, and not made up by the clerk in the entry of judgment. If, however, it is to be regarded as a finding, it is insufficient. No fact is found. It merely states that there was a “ failure of proof.” 2. The only question in the case is, whether the deed from Macey to plaintiff was void, because no town plat had been made of the town of Winston ; and on this point, it is insisted that a deed for a town lot will pas the title notwithstanding no plat has been recorded. This is very different from the case in 7 Mo. Rep.
    Mr. Vories, for respondent.
    1. The paper purporting to be a copy of a deed was properly excluded, as no preliminary proof was offered. 2. This court cannot see that it was proper evidence, as it is not saved in the bill of exceptions. 3. The finding was sufficient. There being an entire failure of proof, the court could find nothing more than it did. -
   Scott, Judge,

delivered the opinion of the court.

It is impossible to ascertain from the record, although it contains twenty-eight pages, the point on which this cause turned in the court below. When parties are to be subjected to the expense of an appeal to the Supreme Court, it would be well enough for the record from the court below to show the point on which the cause was decided.

The deed offered by the plaintiff in support of his title was rejected, but on what ground we are left to conjecture. On the state of the pleadings, we do not see wiry judgment was not entered for the plaintiff, as the defendant does not in his answer deny but that he entered upon the lot for which this suit was brought. The issue made by the pleadings was, whether tbe defendant bad entered upon the lot or piece of ground which the plaintiff claimed, and not whether the plat of the town in which the lot. was represented to be was recorded or not. The defendant does not deny but that he is in possession of the piece of ground claimed by the plaintiff. Where, then, was the issue, according to the pleadings ?

If the defendant intended to rely on the defence hinted at in his answer, but which was not stated in such a way as to deserve the notice of the court, that the plat of the town in which the lot was described to be, had not been acknowledged and recorded, it should have been stated directly, and in a way that nobody could have mistaken his design.

The case of Downing v. Ringer, (7 Mo. Rep. 585,) decides that the proprietor of a town, the plat of which is unrecorded, cannot recover the purchase money for a lot sold in such town, inasmuch as the penalty imposed on the vendor for such an act implies a prohibition, and the courts cannot aid him in doing that which is forbidden by law.

If a vendee of a lot, in such a town, knowing that the plat is unrecorded when he purchased, should bring an action to enforce a specific performance of the contract of sale, he might be met with the statute. But, in this case, there is nothing showing that the vendee was affected with any notice of the fact that the plat was unrecorded, and without such notice he is an innocent purchaser.

But the answer to this whole matter of the plat being unrecorded is, that the contract is executed, the title has passed, and the law imposes no penalty on the vendee.

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


text:
    The City of Independence, Respondent, vs. Noland, Appellant.
    1. A tavern license cannot authorize the holder to sell liquor within the limits of an incorporated city, in violation of an ordinance previously passed in pursuance of a power conferred by the charter.

      Appeal from Jackson Circuit Court.

    Noland was fined in the major’s court of the city of Independence, for selling liquor within the limits of the city, and appealed to the Circuit Court. By the 11th section of the charter, (Sess. Acts of 1853, p. 67,) the mayor and board of councilmen were authorized “ to restrain, prohibit and suppress tippling houses, dram-shops and the sale of spirituous liquors.” Under the authority thus conferred, an ordinance was passed prohibiting the sale of liquor within the city limits, except for medicinal and mechanical purposes, which took effect on the 1st of January, 1854. On the 6th of September, 1854, the county court of Jackson county issued a license to the defendant under the act concerning “ Inns and Taverns,” (R. C. 1845,) authorizing him to keep.an inn and tavern in the city of Independence. The sale of liquor for which defendant was prosecuted, took place during the continuance of this license. The defendant, being convicted in the Circuit Court, appealed to this court.
    Adams, for appellant.
    1. The 11th section of the city charter must be construed in reference to the general law of the state. It was not the intention of the legislature to divest themselves of the power to grant licenses to tavern keepers in the city of Independence. (9 Mo. 526. 11 Mo. 61, 431.) 2. The legislature could delegate no power to the city to pass a law inconsistent with the laws of the state. (State Const, art. 3,§1.)

      Wm. M. Cooke and Thos. E. Yeatman, for respondent.
    1. The right of the legislature to delegate to municipal corporations tbe power to pass police laws, is beyond question. 2. If tbe power of legislation conferred upon a corporation is inconsistent with an antecedent law, sucb antecedent law must be considered as abrogated witbin tbe limits of tbe corporation upon tbe exercise of tbe power. 3. Tbe power “ to suppress'’ tbe sale of liquor witbin tbe city is a nullity, if tbe county court could authorize it by license. ( City of Hannibal v. Guyott, 18 Mo. Rep.)
   Leonard, Judge,

delivered the opinion of the court.

No doubt exists as to tbe competency of tbe legislature to confer upon tbe people of any place the usual powers of local government, and in tbe exercise of this power, they have given to tbe people of Independence authority to restrain, prohibit and suppress tippling bouses, dram-shops, and tbe sale of spirituous liquors (Sess. Acts, 1853, p. 64, § 11). Although, under tbe general law, tbe county courts are empowered to grant tavern licenses, and persons are thereby authorized to retail spirituous liquors, yet here is a special authority to prohibit tbe sale of them within tbe limits of this city, and when it is exorcised by tbe passage of an ordinance to that effect, tbe act of selling in that place is unlawful. Tbe privilege of retailing there cannot be conferred by the county court. No other construction can be given to this provision, without altogether annulling it. If the county court of Jackson county can license tbe sale of spirituous liquors in Independence, contrary to an ordinance of tbe city, then tbe local authorities have not tbe power of prohibiting it. Tbe general rule, that local ordinances are subordinate to tbe general law of tbe land, has no application in this case. This prohibition, if witbin tbe power conferred upon tbe local government by tbe legislature, is as obligatory upon all who are subject to that government as if it were tbe act of tbe general legislature itself.

In the City of Hannibal against Guyott, (18 Mo. Rep. 515,) it was decided that, after a license bad been lawfully granted by the county court, it was not competent to the city government, by an ordinance, to annul the privilege the party had purchased from the state ; that it was a vested right of which he could not be deprived. This, however, is not the present case. Here, the ordinance was in force when the license was granted, and so the party never acquired any legal right to sell spirituous liquors in Independence. The legislature authorized the corporation to prohibit the sale of them there, and so the same authority that conferred upon the county courts general power to grant tavern licenses in their respective counties, authorized this corporation to prohibit the sale of intoxicating liquor within its limits, and this special power must have effect as a limitation upon the general authority. The judgment is clearly right, and is affirmed.


author: Leonard, Judge, Scott, J.,

text:
    Duval, Respondent, vs. Laclede County, Appellant.
    1. Under the 6th section of the act concerning the poor, (E. C. 1845,) a party who voluntarily buries a poor person has no legal demand against the county. (Scott, J., dissenting.)

      Appeal from Laclede Circuit Court.

    Duval presented to the county court of Laclede county for allowance a demand against the county for attendance upon Mrs. Basney during her last sickness, and for money paid for her funeral expenses. The county court refused to allow the demand, and he appealed to the Circuit Court. At the trial, there was evidence tending to show that Mrs. Basney’s husband was a poor person, and that during her last sickness she was carried to the house of Duval and there taken care of; that the expenses of her burial were paid by him, and that the charges were reasonable. There was no evidence of any request or promise on tbe part of the county. Duval obtained a judgment in the Circuit Court, and the county appealed.

      F. P. Wright and Gardenhire, for appellant.

      J. M. Richardson, for respondent.
   Leonard, Judge,

delivered the opinion of the court.

The judgment of the Circuit Court is clearly erroneous. Upon the facts of the case, giving them the most favorable construction for the plaintiff, he has no demand against the county that he can enforce as a matter of right in a court of justice. Assuming that the deceased was a poor person of the county, and that the burial of the county poor, as well as their support during life, is embraced in the general duty to take care of them, (the 6th section of the poor law being merely an authority to the county court to apply the county funds at their discretion to the burial of the casual poor that happen to die in the county,) it would be against all principle to allow the plaintiff voluntarily to discharge this duty for the county, and in this manner become its creditor, without its consent, for services rendered, or money expended, in taking care of its poor.

Such volunteer acts create no obligation in any case, without a subsequent express promise, nor even then, unless the party sought to be charged was under a legal obligation to do the act. (Lampleigh v. Brathwait, 1 Smith’s Lead. Cases, 167, and cases referred to in note of Amer. ed. Atkinson v. Banwell, 2 East, 506.) There are cases in which the law will imply a request on the part of such persons, but this is not a case of that character. (Lampleigh v. Braithwait, above cited, Am. note, where the cases on this subject are collected.)

Here, the duty of the county to maintain its poor, including within it, as we have remarked, the duty of providing for their burial, when dead, is created by statute, and did not exist before ; and the statute that imposes it has provided in what manner and by whom it shall be performed. The county court, upon the knowledge of any of their justices, or upon the information of any justice of the peace, are to make the necessary orders. The providing for the poor of the county is an administrative duty imposed upon this tribunal, and we are to presume they properly discharge their duty ; but if, in any instance, they fail to do so, the remedy is not by the interference of private persons, voluntarily providing the relief or doing the act.

The present proceeding, it is true, is not an action at law against the county, in the ordinary form, but a proceeding under the 1st and 10th sections of the act of 1845, concerning “ county treasurers,” but the result is the same. The accounts referred to in the tenth section, and, upon a disallowance of which by the county court, an appeal is allowed to the Circuit Court, must be considered legal demands against the county, such as would support an action at law, and not matters resting exclusively in the discretion of the county court over the county funds, instances of which are to be found in the fifth and sixth sections of the act concerning the poor.

The judgment of the Circuit Courtis reversed, and this court, proceeding to render such judgment as the Circuit Court ought to have rendered, affirms the judgment of the county court.

Scott, J.,

dissenting. The sixth section of the act to provide for the support of tho poor, prescribes that the county court of the proper county shall allow such sum as it shall think reasonable for funeral expenses of any person who shall die within the county, without means to pay such funeral expenses. This section, I conceive, makes it the imperative duty of the county to pay the reasonable expenses of burying its poor. The law did not intend to give a discretion to the court, whether it would pay or not. For the sake of humanity, it intended that every man who would bury the decaying bodies of the poor, should be paid. In such cases, there is no time to wait — there is no time to consult or ask advice, and therefore the law promises to pay any one who will bury the body. If the law was such that the party would only be paid in the event the county court thought proper to do so, the dead body, in many cases, might go unburied, or buried in such a manner as would be a disgrace to humanity. The law, out of respect to our mortal remains, assures every one who will bury the body of a poor person, unable to pay his own funeral expenses, that he shall absolutely be paid for it.