text:
    Ridgley, Respondent, v. Stillwell, Appellant.
    1. A judgment recovered is conclusive as between the parties thereto as to all matters directly in issue.
    2. This rule does not extend to matters collaterally or incidentally considered.
    3. In the absence of any agreement or understanding between a landlord and his tenant the rent will be payable yearly and at the end of the year.

      Appeal from St. Louis Lcmd Cowt.

    The amended petition in this case states that the defendant, Stillwell, entered on certain premises in St. Louis as the tenant of the plaintiff Ridgley; that he continued to occupy the same during the year ending February 15,1857, and was indebted to the plaintiff for the use and occupation thereof for the year aforesaid; that when the defendant took possession he agreed to pay the plaintiff rent therefor, and by virtue of said tenancy and agreement became liable to pay the plaintiff $700 for the use and occupation of the premises for the said year ; that the defendant agreed to pay the rent in monthly instalments and the taxes that might be assessed thereon.
    The defendant in his answer admitted the occupation of the premises, but denied that he became liable to pay $700 therefor, or that he agreed to pay the rent monthly or the taxes, or that the year of his tenancy ended February 15, 1857. The answer farther set forth a special agreement to the effect that on the 15th of March, 1851, the plaintiff agreed to let the premises to defendant for the term of ten years, to commence at that time, and to execute a written lease, in consideration of which the defendant agreed to pay annually an amount as rent equal to ten per cent, on the cost of the ground and fifteen per cent, on the cost of the building, and that pursuant to said agreement he went into possession on the 15th of March, 1851, and has remained in possession ever since ; that the plaintiff has refused, though often requested, to exhibit the cost of the land and house, so that the amount of the rent could not be ascertained; that plaintiff had also refused to execute a written lease; that the rent estimated in the basis of the agreement would not ex-exceed $600 per annum; that the rent was to be paid annually on the 15th of March of each year during the term; that the year of defendant’s tenancy had not ended when this suit was commenced — February 20,1857.
    On the trial the plaintiff introduced in evidence the record of another suit between the same parties, which was commenced 18th Februaary, 1856, and on which a final judgment had been rendered. The petition in this suit contained three counts. The first was in ejectment for the possession of the premises on which a recovery was cut off by an instruction. In the second count it was averred that on the 15th of March, 1851, the defendant, by a verbal agreement, rented the premises of the plaintiff for $700 per annum, payable monthly, and the taxes; that he occupied the premises under the agreement for three years ending March 15,1854; that about 14th February, 1854, the defendant was notified that if he occupied the premises after the 15th March following he would be required to pay at the rate of $800, monthly, and that the defendant continued in possession after the 15th of March to the time the suit was instituted. The third count was for use and occupation on a quantum meruit. It stated that the defendant became the tenant of the plaintiff on the 15tli of March, 1851, and bad remained in possession; tbat tbe rent for three years ending March 15th, 1854, was of the yearly value of $800, and that since then the rent has been of the yearly value of $1,000. The defendant in his answer admitted that he was notified as is stated in the second count, but denied all the other material allegations in the petition and set up special matter substantially as is done in the answer to this action. The verdict of the jury in this case was as follows: “ We, the jury, find for the plaintiff the amount of $991.63, being the balance which we find due to said plaintiff for rent at the rate of $700 per year.”
    Defendant objected to the introduction of this record. The defendant offered to prove that the letting of the premises described in plaintiff’s petition was under a verbal agreement between the parties ; that the tenancy under said agreement began on the 15th day of March, 1851, and was for a period of ten years at an annual rent to be ascertained by computing ten per cent, on the cost of the building, and that the annual rent computed on these terms would not exceed $600 per annum. The court rejected this testimony.
    The plaintiff ashed and the court gave the following instruction : “ 1. If the jury find from the evidence that the defendant Stillwell, in a previous suit in this court between the plaintiff Eidgley and the defendant Stillwell for rent of the same premises under the same letting for the rent of which premises subsequently accruing this suit is instituted, interposed as a defence the same alleged agreement as that set up in his answer in this case (an agreement to lease said premises at a percentage on the cost of the ground and the cost of the buildings and improvements thereon) ; that the jury, on the issue made on said cause found that the defendant was a tenant of the plaintiff at the rent of $700 per annum, and that there has been no change of the terms on which said premises were rented since the original leasing in the year 1851, then the defendant can not, in this suit, deny that such renting was at the rate of $700 per annum.”
    The defendant asked the court to give the following instructions : “ 2. Unless there was an express agreement or understanding between the parties that the rent in question was to be paid monthly, it was payable annually — that is to say, at the end of each and every year, and the burden of proving that the rent was to be paid monthly rests on the plaintiff. 3. If the plaintiff let the premises described in his petition to the defendant under a verbal or unwritten agreement; if the tenancy of the defendant under said agreement commenced on the 15th of March, A. D. 1851; if the defendant continued to occupy said premises under said agreement to the time of bringing this suit, then the plaintiff can only recover in this action for so much of the rent sued for as accrued prior to the 15th day of March, A. D. 1856, unless the plaintiff has shown in evidence that the defendant agreed to pay the rent for said premises monthly. 4. If the letting of the premises in question was under a verbal or unwritten agreement and if there was no agreement between the parties that the rent was to be paid monthly, then the plaintiff can not recover in this action for any rent that has accrued since the 15th day of March, A. D. 1856.” These instructions the court refused to give.
    The court found for the plaintiff and assessed his damage at 1714.

      Krum & Harding, for appellant.
    I. The court erred in admitting in evidence the bill for $583.36 for ten months’ rent, as well as the verdict of the jury, which appear in the record of the former suit.
    I. The evidence offered by the defendant should have been admitted.
    III. The court erred in giving the instruction asked by plaintiff, also in refusing those asked by defendant. (5 Cush. 99.)

      Knox & Kellogg, for respondent.
    I. The appellant is estopped by the former judgment from setting up the agreement set up in his answer to this suit. The verdict in the former suit shows conclusively that the rent was $700 per annum.

      II. A renting of a house by the year, with nothing further said as to when or how the rent is payable, does not make the rent payable annually. There is evidence that the rent was payable monthly.
   Richardson, Judge,

delivered the opinion of the court.

The law forbids the litigation of any matter which has once been determined by a court of competent authority between the same parties ; and a judgment therefore directly on a particular point is conclusive between the same parties in relation to the same matter involved in another suit. (Edgell v. Sigerson, 26 Mo. 583; Gardner v. Buckler, 3 Cow. 120; 2 Cow. & Hill’s notes, 587, et seq.) But the rule only applies to that which was directly in issue. (1 Greenl. Ev. § 528,) and does not extend to points which were collaterally or incidentally considered, or that could only be argumentatively inferred from the judgment. (Hopkins v. Lee, 6 Wheat. 109.)

The application of these rules will show, we think, that the record of the former suit was improperly received in evidence. The main question in this case was whether the defendant had agreed to pay in monthly instalments 1700 per annum besides the taxes ; and, if this point was directly in issue and decided in the first suit, the controversy ought to cease. But it will be observed that the third count in the record offered in evidence proceeded entirely upon a quantum meruit for rent at the rate of $800 per year for the first three years ending the 15th of March, 1854, and at the rate of $1,000 a year after that time ; and the second count was upon a liability for $700 a year, payable monthly, besides the taxes, for three years ending March 15, 1854, and $800 per annum in monthly instalments, besides the taxes, after that time. To which count was the verdict responsive ? It found that the plaintiff was entitled to receive 1991.63, being the balance “ for rent at the rate of $700 per year but neither count in the petition claimed only $700 a year, for the second count claimed for the last two years $800, and the third count claimed 1800 for the first three years and $1,000 for the last two. Then, again, the defendant insisted that he agreed to pay annually as rent a sum to be ascertained by calculating a given per centum on the cost of the lot and building; and, looking only at the pleadings, the verdict is not inconsistent with the defendant’s theory except in the amount produced; for, though the defendant averred that the amount would not exceed $600 per annum, it would of course be increased by a higher valuation of the cost of the lot and improvements.

Furthermore, the contract was an entirety, to-wit, the taxes and seven hundred dollars to be paid monthly. Now the jury did not find that the rent was payable monthly or that the defendant was to pay the taxes ; and, conceding that the judgment in the first suit ascertained the yearly rent to be paid, it left open every other question, and was not competent to establish a fragment of the contract declared on in this case.

The plaintiff gave in evidence a receipt and an account rendered, which the defendant had used in a former suit, no doubt for the purpose of preventing the plaintiff from recovering more than seven hundred dollars per annum. These papers were not only relevant, but, having been recognized by the defendant as genuine and truthful, proved, not only that the rent was $700 per year, but that it was payable at other periods than at the end of the year. The receipt was dated in January, 1852, and was at the foot of an account stating an indebtedness of the defendant to the plaintiff, which contained among other items this one: “To ten months’ rent, ending 15th inst., $583.33.” The tenth part of this sum (one month’s rent) multiplied by twelve produces seven hundred; and, as the year did not end until the middle of March following, the payment in January tends to show that the rent was not payable only at the expiration of the year. The bill rendered contains an item of $1,283.35 for twenty-two months’ rent, which goes to prove the same fact.

The instruction asked by defendant ought to have been given. Kent is in its nature a return issuing yearly for the use of another’s land, and, in the absence of any agreement or understanding between the parties to the contrary, is by law payable at the end of the year. (Menaugh’s Appeal, 5 Watts & Serg. 432; Boyd v. McComb, 4 Penn. 146; Bordman v. Osborn, 23 Pick. 299.)

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


source: Caselaw Access Project

author: Napton, Judge,

license: Public Domain

text:
    Squires, Plaintiff in Error, v. Fithian’s Administrator et al., Defendants in Error.
    1. Tile local mechanics’ lien act of St. Louis county of Eebruary 24, 1843, (Sess. Acts, 1843, p. 83,) did not confer a lien where the person for whom the building is erected has no interest in the premises but is a mere tenant at will.
    2. The thirty days’ notice referred to in said act is required only of sub-contractors.
    3. Where the contract for the building of a house is really incomplete, the work being prosecuted from time to time as materials may be provided or as the progess of other work may require, the mechanic is not required to file his lien within six months of the completion of each detached piece of work, but within six months of the completion of the whole work.

      Error to St. Louis Land Court.

    This was an action commenced by scire facias to enforce a mechanic’s lien upon a house and lot. The writ set forth that work was done by plaintiff and materials furnished by him under a contract with Samuel B. Eithian, the owner of the building; that Euphrosine Leitensdorfer and Josephine Colburn were owners of the lot; that the lien was filed February 3,1855, within sis months after the account accrued ; that notice was given to said owners of the lot January 25, 1855, &c. The writ issued February 13, 1855.
    The writ was served on Madame Leitensdorfer and Josephine Colburn. The latter answered disdaining all interest in the lot. Eithian dying, his administrator was made a party to the suit. Madame Leitensdorfer answered alleging that she knew nothing of the state of accounts between plaintiff and Eithian; that plaintiff was neither contractor nor sub-contractor for her ; that the building, so far forth as the plaintiff has done any work or furnished any materials therefor, was completed more than twelve months before the filing of any papers for a lien, or the giving of any notice ; that no account was filed by plaintiff, Squires, nor any demand made for a lien, until after six months from the accrual of demand against Eithian; that no demand ever accrjj favor of Squires against her; that Eithian, for ten next preceding the institution of this suit or any proc in this cause, had no interest in the building or the which it stands ; that Fithian never was any thing mo|e a tenant at will under defendant; that said tenancy hat7 ’ determined more than twelve months before the putting : the answer, and upwards of six months before the filing of any paper or the commencement of any proceedings in this carise.
    The plaintiff introduced evidence showing and tending to show that the plaintiff, Squires, did the carpentry work of a brick house under a contract with Eithian, the son-in-law of Madame Leitensdoi'fer ; that some work was done by plaintiff as late as October, 1854. Plaintiff also introduced evidence with a view to show that Madame Leitensdorfer sanctioned the work done by him, and that Eithian was her contractor and plaintiff Squires a sub-contractor.
    Plaintiff asked the following instructions, which the court refused to give : “ 1. If the jury believe from the evidence that S. B. Eithian was in possession of the lot described in the scire facias by and with the consent of the said Euphro-sine Leitensdorfer, his mother-in-law, who was the owner of said lot, and that said Eithian contracted with the plaintiff to furnish the materials and do the carpenter’s work of said building, the jury will find for the plaintiff for the value of said work and materials, if the jury also believe from the testimony that the plaintiff filed his lien within sis months after he had completed his work. 3. If the jury believe from the evidence that the work done and materials furnished by the plaintiff in the month of October, 1854, as described by the witnesses, necessary to the completion of said work and building, then the jury will find that said lien was filed within the six months after the doing of the work and furnishing the materials. 3. If the said Euphrosine Leitensdor-fer gave possession of said lot to said Eithian and he was the son-in-law of said Euphrosine, and she resided in the immediate vicinity of said lot and could see the daily progress of the work by the plaintiff and interposed no objection to the same, she is estopped, as far as plaintiff is concerned, to deny the right of said Eithian to erect said building and to contract for said work.”
    Defendant then asked the following instructions, which were given by the court: “4. If the plaintiff upwards of twelve months after doing any work on the building in question repaired thither with McKown and Ligget, andj for the mere purpose of making claim that he completed the work on that occasion, nailed the nosing on the portico which has been spoken of by the witnesses of the plaintiff, then he has no lien and can not recover in this action for any work done previously. 5. The plaintiff can not recover as against the defendant Leitensdorfer unless he shall have shown that within thirty days of the doing of the work for which the lien is claimed he gave notice to her of his intention to hold the premises for the amount of his demand. 6. The plaintiff can not have a lien for any work or materials which he shall not have shown to have been done and furnished towards the building described in the writ within the six months prior to the filing of the lien.”
    The plaintiff asked the court to give the following instruction : “ 7. If the jury believe from the evidence the plaintiff contracted with the defendant Eithian to do the carpenter’s work and furnish the materials for the same upon the building mentioned in the scire facias, then until the completion of the work or the dissolution of the contract the plaintiff’s account runs and he has six months thereafter to file his lien ; but the mere doing some little job of work, for the purpose of procuring a lien, after the work has been done or the contract dissolved, will not continue the lien.” The court refused to give this instruction, as asked, but gave the same with the following modification: “ Provided they also find that the work done and materials furnished were so done and’ furnished with the express consent of the other defendants who were the owners of the property, and such express consent must be proved.” Both parties excepted.
    The plaintiff thereupon took a nonsuit.
    Whittelsey, Primm and Romyn, for plaintiff in error.
    I. A tenant in possession of land is, under the act of 1843, to be considered as the owner of the building, and both it and the land will be bound by the lien unless the lease be recorded before the indebtedness accrued. (2 Rawle, 343 ; 4 W. & S. 223; Bicel v. James, 7 Watts, 9; Holdship v. Abercrombie, 7 Watts, 52.) Madame Leitensdorfer permitting the building without objection, must be estopped from denying the authority of Eithian. (Skinner v. Stone, 4 Mo. 93 ; 2 Smith Lea. Cas. 532 ; 3 Hill, 219 ; Stephens v. Baird, 9 Cow. 377; 21 Mo. 213.) The court therefore erred in refusing the first and third instructions asked by plaintiff.
    II. The plaintiff has six months after the completion of his work or contract to file his lien. He is not limited to six months from the date of each separate item. (15 Mo. 280; 10 Barr, 413; 2 Jones, Penn. S. 339; 19 Penn. 341; 22 Penn. 489.) Account accrues from date of last item. (16 Mo. 256 ; 12 Penn. 339.) The plaintiff was not bound to prove the express assent of the owner of the property to the completion of plaintiff’s work. The proviso to the seventh instruction is erroneous. (10 Barr, 413; Jolms v. Bolton, 2 Jones, Penn. 339 ; 19 Penn. 341; 22 Penn. 489.)
    III. The court erred in giving the fifth instruction. The third section of the act of 1843 applies only to cases of subcontractors, and not to persons having contracts with the owner of the building. The plaintiff contracted with Fithian as owner of the building, and the limitation of thirty days’ notice does not apply. (Schulenburg v. Gibson, 15 Mo. 280.)
    Gantt, for defendants in error.
    I. The court committed no error'in refusing the seventh instruction as it originally stood. It was erroneous then; the addition did not mend it; but plaintiff excepted only to the refusal to give it in its original form. The other instructions asked by plaintiff were properly refused.
    II. The fifth instruction did not damage the plaintiff. He could not recover against Madame Leitensdorfer in this form of action under any circumstances. (Clark v. Brown, 25 Mo. 564.)
    III. The writ of scire facias is essentially defective. It shows that Fithian is not the owner of the lot on which the building stands, but that Madame Leitensdorfer is. It fails to show that Fithian had at any time any interest in the lot, or what that interest was, when it commenced, whether it is still subsisting or when it closed. It is ambiguous as to whether Fithian was contractor with Madame Leitensdorfer and Squires sub-contractor under him, or whether he (Fithian) claimed some interest in the lot by reason of which he improved it. (See 2 Wharton, 197.)
   Napton, Judge,

delivered the opinion of the court.

This action seems to be brought upon the hypothesis that the law in this state gives a lien against the owner of a lot where the contract for building is not made with him but with a person who has no interest in the premises. The local law of St. Louis provides for the case of a lease, but there was no lease proved in this suit — nothing at best but a tenancy at will. The act of 1843 provides only for leases which may be recorded, and of course alludes to such interest as must be, under the statute of frauds, in writing. (Sess. Acts, 1843, p. 83.) It was not thought necessary, it may be supposed, to provide for interests short of this, as it was not contemplated that a person having a less interest in the premises than an estate for years would be willing to put up improvements on them. Our lien laws have not, like the Pennsylvania acts, adopted the principle of making land liable to a lien for improvements made thereon without regard to the right or title of the person ordering them.

The second instruction given by the court at the instance of the defendant was erroneous. The thirty days’ notice referred to in the act of 1843 is confined to sub-contractors, and the petition does not proceed upon the hypothesis that the plaintiff was a sub-contractor under Eithian; nor does the evidence tend to establish such a state of facts.

The instructions given by the court in relation to the point of time from which the sis months’ limitation commences to run are somewhat confused as they appear on the record. Undoubtedly, after the actual completion of the work contracted for, the builder can not by a mere artifice, such as driving in a few nails, save himself from the operation of the limitation. Of this the jury, in each case, must judge according to the proof. But where the contract is really incomplete, where the work is prosecuted from time to time as materials may be provided or as the progress of other work may require, the mechanic is not required to file his lien within sis months of the termination of each detached piece of work, but within six months of the completion of the whole work.

The evidence in this case tended to show that the lien was filed in time; but we can perceive no benefit to be derived by the plaintiff from a reversal of the judgment on this ground, since upon the main theory of his case he can not maintain his action. That Madame Leitensdorfer was bound in equity and good conscience to pay for this work, we think the evidence tends very satisfactorily to show; but that is not the question here. The only question is whether the plaintiff’s remedy is given by the mechanics’ lien law, and we do not see how he can get along under this statute. Whether Madame Leitensdorfer’s conduct, in witnessing and approving the progress of this work, thus conducted under a contract nominally with her son-in-law, who she knew had received from her no evidence of title, would justify an inference that she was really the principal in the contract and Dr. Fithian but acting as her agent, we are not now called upon to determine.

The other judges concurring, the judgment is affirmed.


author: Scott, Judge,

text:
    Barbee and Wife, Respondents, v. Wimer et al., Appellants.
    1. Debts contracted by a husband after property has come into the possession of his wife by descent, &c., may be enforced against that property. It is not exempted from execution by the act of March 5, 1849. (Sess. Acts, 1849, p. 67.)

      Appeal from St. Louis Cou/rt of Common Pleas.

    This was an action in behalf of Elvira Barbee to recover damages for an alleged unlawful seizure by defendant Wimer, as sheriff of St. Louis county, by the order and direction of the other defendants, of a negro slave alleged to be the sole and separate property of said Elvira Barbee. It was alleged in the petition that on the 16th day of August, 1851, William Triplet, the father of the said Elvira, gave to her the slave in question as her separate property free from the control of her husband, not subject to or liable for any debts, claims or demands contracted or to be contracted by the said husband, Andrew B. Barbee.
    The defendants set up that said slave was levied on and sold by John M. Wimer, as sheriff, on the 11th of January, 1853, by virtue of two several executions — one issued under a judgment, dated September 23, 1852, against Andrew B. Barbee and Marshall Ring, founded on a promissory note executed by said Barbee and Ring — the other, issued under a judgment dated February 13, 1852, against said Barbee,’ founded on a promissory note dated January 15th, 1852, for $89.65. Defendants also allege that the proceeds of the sale of said negro slave — $500—were applied in payment of said two executions; that the remainder was applied in payment of a third execution against said Barbee issued January 7, 1853 ; also that the deed of gift mentioned in the petition was fraudulent and void.
    On the trial evidence was introduced showing and tending to show that the plaintiff Elvira Barbee was married to Andrew B. Barbee January 22, 1845; that by deed of gift dated August 16, 1851, William Triplett, father of said Elvira, gave the slave in controversy to her and her children “ free from the control of her husband and not subject to or liable for any debts, dues, claims or demands contracted or to be hereafter contracted by him, the said Andrew B. Bar-bee, but to be held and enjoyed as the sole and exclusive property of her, the said Elvirathat soon after the marriage of said Barbee said slave went to live with himself and wife, and remained with them, with slight intermissions, until levied on and sold as stated in the answer ; that said Elvira always claimed the slave in controversy as her own. Tiie evidence tended to show that previous to the execution of the deed of gift the slave was held by Barbee by way of a loan from Triplett.
    The court, of its own motion, gave the following instructions to the jury: “ 1. If the jury believe from the evidence that the instrument of writing purporting to have been executed by Wm. Triplett, and read in evidence, was executed by him and delivered to Mrs. Barbee or her husband before the alleged seizure of the slave conveyed by said instrument, and that the possession of said slave was delivered to and retained by Mrs. Barbee or her husband under said instrument, and that the defendant Wimer seized and carried away said slave, then the plaintiffs are entitled to recover against said Wimer, unless it is further shown by the evidence that, for five years prior to said instrument said slave had been in the continuous adverse possession of said Andrew or his wife,, or that prior to the execution and delivery of said instrument said Triplett bad given said slave to Mrs. Barbee or her husband; and if said Wimer so seized and carried away as aforesaid said slave by the direction of Henderson, one of the defendants, then Henderson is equally liable with Wimer; otherwise, Henderson is not liable. 2. The measure of damages in this case, if the jury find for the plaintiffs, is the value of the slave, and the jury may allow interest at the rate of six per cent, per year from the time the slave was so taken from the plaintiffs. If Triplett, before the execution of the instrument in writing read in evidence, had given the said slave to said Andrew or his wife, and subsequent to said gift said slave was seized and taken away by virtue of or under an execution against said Andrew for a debt by him contracted subsequent to said gift, then the jury will find for the defendants ; or if, prior to the execution and delivery of said instrument, said Andrew had had five years continuous adverse possession of said slave, and the same was seized and taken away by defendants under or by virtue of a judgment and execution against said Andrew, the jury should find for the defendants. 3. If the said slave was given to Mrs. Bar-bee unconditionally prior to the execution and delivery of the instrument in writing dated August 16th, 1851, and she or her husband had possession under such an absolute gift before the execution and delivery of said instrument, then said slave could not be seized under an execution against said Andrew issued upon a judgment recovered against said Andrew upon a debt contracted prior to said absolute gift, but it was liable to be seized upon execution under a judgment recovered upon a debt contracted after such an absolute gift, and the possession of the property by the donee. 4. If the slave in question was loaned by Triplett to said Andrew or his wife, and possession of said slave remained with said Andrew or his wife for the space of five years, then, as between said Triplett and said Andrew and wife the title to said property was. still in said Triplett; and at any time thereafter and before the sale of the slave by said Andrew and wife, or before the issuing of an execution against said Andrew or Ms wife, the said Triplett could make a valid disposition of the slave and convey the same.”
    The court refused various instructions asked by defendants.
    The jury found for plaintiffs.

      Cline & Jamison, for appellants.
    I. The deed of gift gave to Elvira Barbee a life interest with remainder to her children. The second instruction was therefore wrong and the damages excessive. (24 Mo. 182.) The court erred in giving the first instruction. The deed of gift was fraudulent as to the creditors of Barbee. It was nob recorded. The slave was in his possession from the spring of 1845 to January, 1853. There was no change of possession when the said deed was made. Credit was given to him on account of his possession of said slave. (2 McCord Ch. 131; 1 Bay, 232 ; 2 Nott & McCord, 93.) ■

      Carroll, for respondents,
    cited Murray v. Fox, 11 Mo. 555; Cook v. Clippard, 12 Mo. 379.
   Scott, Judge,

delivered the opinion of the court.

This case will be considered in two points of view; in the one, as it stands affected by the act of March 5th, 1849, entitled “ An act to amend an ‘ Act to regulate executions” in the other, as it remains independent of the provisions of that act.

In viewing this controversy as influenced by the act of 1849, to which reference has been made, we find that only one of the debts, for the satisfaction of which the property in controversy was sold, accrued before the date of the bill of sale or deed of gift, which was the 16th of August, 1851. There is nothing in the act of 1849 which prevents the property belonging to mai’ried women before, or coming to them during, the marriage from being taken in satisfaction of debts contracted by the husband after the property has come into the wife’s possession. The statute only exempts the property coming in right of the wife from the payment of the debts before the marriage in case of property coming by and at the time of marriage, but property coming in right of the wife after marriage is only exempt from debts contracted previous to the time at which it comes into her possession ; or, which is the same thing, into the possession of the husband. Debts contracted after the property has come to the possession of the wife are not within the purview of the statute, and may be enforced against that property. Then, if the plaintiff claims under the deed of gift, as at least one of the debts on which the executions were founded was contracted after the property came into the possession of the wife by virtue of that instrument, it was lawfully sold.

If we regard the slave as a gift by the father to his daughter, from the time she left his house in October or November, 1845, accompanied by the slave, then it is obvious that the act of 1849 had nothing to do with the transaction, as the gift was perfected before that statute was enacted, and all the debts would have been contracted after the property of the wife had came to her possession. If the original dealing in relation to the slave in 1845 be regarded as a loan, as it should be if the parties to it so desire and are willing, then it would continue so until the date of the deed of gift in August, 1851; and in such event it has been shown how the transaction would be affected in reference to the act of 1849.

But, laying out of consideration the act of 1849, it may be said that if the original delivery of the slave was a loan and so intended, it continued such until the date of the deed of gift, and, although the slave had remained more than five years in the possession of the loanee, yet, as at the time of the gift no creditor or purchaser had acquired any right to or interest in the slave by suing out an execution or otherwise, the original loan then terminated, and, the transaction ceasing to be within the fifth section of the act concerning fraudulent conveyances (R. C. 1845, p. -), a creditor would afterwards have no right to seize the property under execution, as the loan had ceased before his execution became a lien on it, which from that time became the sole and exclusive property of the wife by virtue of the bill of sale or deed of gift. In the case of Meaux v. Caldwell, 2 Bibb, 244, slaves were put in possession of a son-in-law, with whom they remained ten or eleven years, when they were taken out of his possession and other slaves were put in their place. The creditors of the son-in-law, whose debts were contracted whilst the first mentioned slaves were in his possession, seized them under execution, and, on a bill filed to enjoin the sale, the slaves were held subject to the execution. It was said that the lender of the slaves having acquired possession of them before the execution was levied, did not change the nature of the transaction; that five years’ possession gave an absolute right so far as creditors and purchasers were concerned. So in the case of Pate v. Baker, 8 Leigh, 80, it was held that, after a loan to a person with whom or with those claiming under him possession had remained five years, a deed was made by the lender declaring the original loan and continuing it, but the deed was never admitted to record, it was held that the deed could not affect a creditor of the person in possession and ought not to be received as evidence against such creditor. (Gay v. Mosely, 2 Munf. 543.)

The case does not require that we should express an opinion on the questions whether if the bill of sale had been recorded, and the debts afterwards contracted, the property would have been' subject to them; or, whether, when the possession has remained with the loanee, or with those claiming under him, for five years, and is then resumed by the lender, the possession must continue with the lender the period of five years from the time it was resumed before the title will be revested in the lender as against a creditor of the loanee.

Napton, Judge, concurring, the judgment is reversed and the cause remanded. Judge Richardson did not sit, having been of counsel.


text:
    Magwire, Plaintiff in Error, v. Hall’s Administrator, Defendant in Error.
    1. A. purchased certain leasehold premises with a saw-mill thereon, which were subject at the time of his purchase to a deed of trust made to secure certain promissory notes. A., at the time of his purchase, had notice of the existence of this deed and supposed it to be a valid encumbrance upon the property. In point of fact the notes and deed of trust were procured by fraud. After A.’s purchase the trustee under the deed of trust advertised the premises for sale and proceeded to sell the same, and at the sale the premises were struck off to one K. as the highest bidder. If. acted as the agent of A. and made the purchase for his benefit. Both A. and K. acted in ignorance of the fraud in procuring the notes and deed of trust. The trustee refused to execute a deed to K. and re-advertised the premises for sale under the deed of trust. If., acting for the benefit of A. and with a bond of indemnity from him, procured a temporary injunction enjoining the sale, A. becoming his surety on his injunction bond. This injunction was af-terwards dissolved. In the meantime the saw-mill had burned down during the pendency of the injunction proceedings and previous to the dissolution of the injunction. The damages awarded to the defendants on the dissolution of the injunction were the full amount of the notes, with interest, &c.; which were paid by A. to the person who had originally procured by fraud the execution of the notes and deed of trust. Until after the termination of the injunction proceedings A. supposed that the deed of trust was a valid encumbrance. Held, that A., not being the party defrauded, was not entitled to recover back the amount so paid by him.

      Error to St. Louis Court of Common Pleas.

    Demurrer to a petition. John Magwire is plaintiff and William S. Allen, administrator of Elisha Hall, deceased, defendant. The facts as they appear in the petition are substantially as follows: Elisha Hall died in the year 1854, testate. The executors named in his will failed to qualify and the defendant Allen became administrator of his estate. On the 1st of June, 1845, one William Chambers, by lease in writing, let certain real estate in block 288 in North St. Louis to Judson Allen, Elisha Hall and Joshua J. Childs for the term of ten years. Said Hall, Allen and Childs were co-partners in the business of sawing lumber, and in the prosecution of said business they erected upon said leasehold premises a steam saw-mill and other improvements. After-wards and before May 15,1846, said Elisha Hall, representing that a larger capital was needed for the more successful prosecution of their business, induced his said co-partners to join with him in the execution of two notes, dated April 1, 1846, for fl,030 each, bearing interest from date, payable to the order of Orris Hall (a brother of Elisha Hall), one in twelve months, the other in eighteen months from date, and, to secure the payment of said notes, to execute with him a •deed of trust upon said leasehold premises. Said deed of trust is dated May 15th, 1846, and was made to one John R. Hammond as trustee, with power of sale in case of default of payment. After the execution of said notes and deed of trust, they were delivered to said Elisha Hall, upon his representation that upon them he could obtain the requisite means from his brother, the said Orris Hall. The only purpose for which said Allen and Childs consented to and joined in the execution of said notes and deed of trust was to raise money to increase their capital and to facilitate the business of said firm. Elisha Hall, having obtained possession of the notes and deed of trust, represented and pretended to his partners that he had procured the discount of said notes by said Orris Hall; but, in violation of his agreement, refused to pay over or apply to the use of the partnership the money so obtained, alleging and pretending that he held said money in his own hands to secure himself against loss by reason of alleged advances made by him to said co-partnership and by reason of debts due by said co-partnership to others. Said pretences and representations of said Elisha Hall were wholly false ; he did not negotiate or-obtain money upon said notes or either of them, but held the-same in 1ns own possession and control up to the time of his. death. On the 13th of February, 1847, said Elisha Hall soldi and conveyed his interest in said leasehold premises to one.-Primus Emerson and said Joshua J. Childs, and required them to enter into bond to him, with plaintiff Magwire as-security, conditioned for the protection and indemnification of said Elisha Hall against the debts of said co-partnership which debts were afterwards all fully paid and discharged. About February 18,1848, plaintiff Magwire purchased and became entitled to said leasehold premises and all the interest of said Hall, Allen, Childs and Emerson therein. After said sale from said E. Hall to said Primus Emerson, to-wit, in May or June, 1847, he, said Hall, still holding said notes and deed of trust, pretending to be acting as the agent of said Orris Hall, but really sseking and designing to enforce the collection of said notes for his own use and benefit, and in fraud of the rights of his co-partners and of said Emerson, induced said John R. Hammond, said trustee, to advertise said leasehold premises for sale under said deed. Said Hammond accordingly did proceed to sell said premises on or about June 7, 1847, to one James Kennedy, who was the highest bidder. Kennedy purchased for plaintiff’s benefit, who advanced the purchase money to him. He immediately conveyed all his right, title and interest to plaintiff Magwire. At the time of this sale and purchase neither Kennedy nor plaintiff Magwire knew the facts above stated relating to said notes and deed of trust, but supposed that said notes and deed of trust were valid and constituted a valid lien on said leasehold property. After said trustee’s sale said trustee refused to execute a deed to said Kennedy, but re-advertised said property for sale. Said Kennedy, acting for plaintiff and under a bond of indemnity from him, filed his bill in chancery in the St. Louis circuit court, praying for an injunction against said Hammond and Orris Hall restraining said second sale. The court issued its temporary injunction so restraining said Hammond and Hall, their agents and servants. In order to obtain said injunction said Kennedy was obliged to and did execute a bond, with plaintiff as security, in the sum of $-, in favor of the defendants in said cause, conditioned that the said Kennedy should abide the decision of said circuit court, and pay all sums of money, damages and costs that should be adjudged against him if the injunction should be dissolved. Said injunction was dissolved. Before the dissolution thereof, and during the pendency of said cause, said saw-mill burned down; and in consequence thereof the damages sustained by the defendants in said cause were assessed at the whole amount of said notes, interest and costs of suit. Afterwards, on or about November 11, 1854, the plaintiff Magwire, by reason of his bond of indemnity to Kennedy and his having joined in said injunction bond, was obliged to satisfy and discharge the amount of damages with interest and costs, to-wit, the sum of $3,846. Said Elisha Hall procured said notes and said deed of trust by a fraud upon his co-partners. At the time of said sale under said deed of trust, said Elisha Hall held said notes and deed of trust for his own benefit. In his hands they were null and void. Said Hall fraudulently procured said sale for his own benefit. Said Hall procured said injunction suit to be defended and procured said assessment of damages for his own benefit, and neither said Hammond nor said Orris Hall had any real interest therein. The amount of said damages was paid by plaintiff since the death of said Elisha Hall to the defendant as administrator of the estate of said Elisha. It is now in his hands as part of the assets of said estate. Plaintiff did not know until after the determination of said cause in chancery and until after the payment of said money that said notes had never been negotiated or discounted, but always supposed that they had been so discounted as aforesaid, and that said sale under the deed of trust was made to repay the advances made upon them, and that it was a valid sale. “ Plaintiff therefore says that he has a demand against defendant, as for so much money had and received to plaintiff’s use, in the sum of $3,846.16, and for that sum, with interest and costs, prays judgment,” &c.
    To this petition the defendant demurred and the court sustained the demurrer.

      W. T. Wood and Krum & Harding, for defendants in error.
    I. At the time Hall sold out to Emerson and Childs, the notes and deed of trust were null and void. As between Hall and the new firm they bad no validity. Nothing in the subsequent acts of the parties interested gave them vitality or validity in law. (See generally 1 Sto. Eq. § 188, 191-2 ; Mitchell v. Atlinger, 1 Barr, 219; Jackson v. Sommerville, 13 Penn. 368-9.) No lapse of time nor any act of confirmation by the party defrauded, even with full knowledge of the facts, can restore and make vital a contract dead on account of actual fraud. (13 Penn. 370 ; Duncan v. McCullough, 4 S. & R. 485 ; Chamberlain v. McCIung, 3 W. & S. 36; Co. Litt. 2146.) If the party defrauded can not affirm and give validity to a transaction void for actual fraud, who else could ? At the commencement of the injunction proceedings and the dissolution of the injunction, the notes and deed of trust were null and void. (See 10 Penn. 185 ; Mitchell v. Kint-zin, 5 Penn. 216; Reigal v. Wood, 1 John. Ch. 402 ; United States, 15 Pet. 594.) The judgment in the injunction proceedings may be impeached collaterally. The judgment was based on instruments procured by fraud and kept on foot for fraudulent purposes; but Magwire and Kennedy knew nothing of the fraud until after the judgment and the payment of the money. (See 13 Penn. 361; 9 Mo. 783 ; 11 How. 437; 1 Johns. Ch. 402; Edgell v. Sigerson, 20 Mo. 494.) If Magwire had had knowledge of the fraud and had been a party to the proceeding, he might have set up the fraud to prevent a judgment based on the notes and deed of trust. He may now recover the money coerced from him under a udgment void for fraud.
    II. No demand was necessary in the case. (Lent v. Pad-dleford, 10 Mass. 244 ; 22 Mo. 405.)
    III. Orris Hall was not a necessary party.
    IY. The petition in this case is not a count for money had and received. It states a case in equity.
    Hill, Grover & Hill, for defendants in error.
    I. The action could not be maintained without a demand. (16 Mo. 527 ; 10 Johns. 284 ; 5 Cow. 378.)
    II. The suit is against defendant as administrator, and as such he is not liable for money had and received to plaintiff’s use. (2 Ala. 354 ; 19 Ala. 25 ; 5 Harring. 289; 3 id. 500.)
    III. There was no privity between plaintiff and defendant, nor between plaintiff and defendant’s testator. (12 Ill. 240.) There was no privity between plaintiff and Hall and Hammond, the defendants in the chancery suit. There was privity however between Magwire and Kennedy. Magwire is bound by the decree in that case. (4 Hill, 522; 1 Johns. 518 ; 6 Johns. 158 ; 3 T. E. 374 ; 4 Mass. 349.) The merits of a judgment can never be overhauled in an original suit either at law or equity. Until the judgment is set aside or reversed it is conclusive. (3 Johns. 157; 3 Day, 36; 3 T. E. 69 ; 12 Mass. 137, 269; 16 Mass. 308 ; 17 Mass. 394; 1 Pick. 485; 8 Johns. 470; 4 Bibb, 508; 2 A. K. Marsh. 353 ; 4 Term. 616 ; 2 S. & E. 143 ; 1 John. C. 543 ; 16 Conn. 12 ; 6 Paige, 233 ; 1 Green. Oh. 108 ; 1 Bland, 486 ; 1 Blackf. 360 ; 1 Sch. & Lefr. 204 ; 1 Johns. Oh. 322.)
   Scott, Judge,

delivered tlio opinion of the court.

We can not conceive a ground in law or equity on which the plaintiff’s right to a recovery in this action can be made to stand. The petition claims that the defendant holds to the use of the plaintiff money to which he is entitled. The cause of action, as stated, fails to set forth any facts from which this allegation can derive any support. The plaintiff, it appears, bought a leasehold estate encumbered with a trust given to secure the payment of debts. He admits that he was aware of the encumbrance at the time of this purchase and says he supposed the debts were genuine and really due, but afterwards discovered that they were fraudulent and pretended. Now, admitting that the debts were fraudulent, that was no concern of the plaintiff. He knew of their existence at the time of his purchase ; he believed them to be justly due ; he must therefore have been indemnified against them by the reduced price at which he purchased the property. As the debts were taken in the estimate in ascertaining the value of the estate, whether they were real or pretended can not affect the plaintiff. To permit him to recover would be talcing so much from those who are really defrauded and giving to the. plaintiff who has no right to it. Those who conveyed the property to the plaintiffs are the only persons to take advantage of the fraud, and if they acquiesce in it nobody else has any ground for complaint.

This view of the subject disposes of the case, and we deem it unnecessary to advert to the other points made by counsel in their briefs.

The other judges concurring, the judgment is affirmed.


text:
    Bowman, Plaintiff in Error, v. Pacific Insurance Company, Defendant in Error.
    1. Among the printed clauses of a fire policy on merchandise were the following : “ If there shall he deposited, kept or stored therein any of the articles, goods or merchandise in the same terms and conditions denominated 'hazardous/ or ‘extra hazardous/ or included in the memorandum of ‘ special’ rates, except as heroin specially provided for, or hereafter agreed to by this corporation in writing, to be added to or endorsed upoifcthis policy, then and from thenceforth so long as the same shall be so appropriated, applied or used, these presents shall cease and be of no force and effect.” “ And it is conditioned that no greater amount than twenty-five pounds of gunpowder shall at any time be placed in the building described in this policy — said powder to be kept in tin or other metallic canisters.” Among the articles enumerated in the memorandum of “ special” rates was gunpowder. There were no other provisions with respect to the keeping oE gunpowder. Held, that the assured might keep on hand a quantity of powder less than twenty-five pounds in tin or other metallic canisters.

      Error to St. Louis Court of Common Pleas.

    This was an action on a policy of insurance against fire. Said policy contained the following clauses: “ If there shall be kept or stored therein any of the articles, goods or merchandise in the same terms and conditions denominated ‘ hazardous,’ or 1 extra hazardous,’ or included in the memorandum of ‘ special’ rates, except as herein specially provided for, or hereafter agreed to by this corporation in writing, to be added to or endorsed upon this policy, then and from thenceforth so long as the same shall be so appropriated, applied or used, these presents shall cease and be of no force and effect.” “ And it is conditioned that no greater amount than twenty-five pounds of gunpowder shall be placed at any time in the building described in this policy — said powder to be kept in tin or other metallic canisters.” “ Gunpowder” was included in the memorandum of “ special” articles.
    The evidence tended to show that the plaintiff kept from four to six pounds of powder in his store, and that it was kept in a wooden keg lined with tin foil.
    The court instructed the jury as follows: “ The terms of the policy suspended the risk whilst gunpowder was kept in the store, unless the defendant agreed in writing that the same might be kept; and, even if such an agreement in writing had been made, the risk would have been suspended by the terms of the policy if the gunpowder was not kept in tin or other metallic canisters, or if the quantity exceeded twenty-five pounds. If therefore there was any gunpowder in the building at the time of the fire and loss, then the jury must find for the defendant, as there is no evidence that the defendant ever agreed in writing that gunpowder might be deposited, stored or kept there.”
    The plaintiff thereupon took a nonsuit, with leave, <fec.

      Krum & Harding, for plaintiff in error.
    I. The court erred in its construction of the policy. Although the clause concerning hazardous and special articles would exclude gunpowder unless agreed to by the company, the subsequent clause is an express agreement that the assured may keep gunpowder in a certain manner.
    II. Whether a keg lined with tin foil is a “ tin or metallic canister” is a question of fact for the jury.

      Biddlecome, for defendant in error.
    I. The policy absolutely prohibits the keeping of gunpowder in any quantity without the written consent of the company. The second provision mentioned is not an exception as a special provision for keeping gunpowder. It only takes effect when that consent has been properly obtained, and regulates the quantity and the manner of keeping it. The instruction given was correct.
   Napton, Judge,

delivered the opinion of the court.

The construction given to the policy sued on was, in our opinion, erroneous.- The first clause of the policy referred to creates a forfeiture in the event that any of the articles enumerated in the memorandum of special rates is kept in the house insured, except where a special provision is made on the subject in the policy, or where such special provision is subsequently agreed to by the parties, reduced to writing and endorsed on the policy. A special provision in relation to gunpowder is found in the body of the policy, and that provision is totally inconsistent with the construction of the first clause which absolutely excludes it. Twenty-five pounds of gunpowder are allowed to be kept, provided it is kept in tin or metallic canisters.

To construe the first section as excluding gunpowder in toto, and the second as allowing it in certain quantities and secured in certain modes, produces a palpable contradiction in the body of the instrument, which is unnecessary. The two provisions will harmonize if the one be understood as modifying the other, and in doing this we must consider the special regulation as controlling the more general one, and not give a preponderating importance to the general provision, as the defendant’s counsel insists, and to produce consistency interpolate a material qualification upon the special clause. The company insists that the privilege of keeping gunpowder, in kegs of twenty-five pounds or under, shall only be enjoyed when there is a special agreement for that purpose; or rather when there is a special agreement for keeping gunpowder at all. Such interpretation would seem to be a strained one ; for, if. a special agreement, in writing and endorsed on the policy, had to be made, in order that the insured might keep any gunpowder whatever, it would surely require no more trouble and hardly any more writing to put down the whole of such agreement at once and specify the amount beyond which the insured could not go and the manner in which the powder should be kept. This makes the special printed clause in the policy almost useless.

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


text:
    Matthews, Plaintiff in Error, v. Wilson et al., Defendants in Error.
    1. Where a principal seeks to recover specific sums of money alleged to have been received by his agent in the course of his employment, and misappropriated by him, it is not error to refuse to order an account, prayed for by the plaintiff to be taken.

      Error to St. Louis Land Court.

    The object of this action is to charge the separate estate of Cornelia Wilson, wife of John D. Wilson, with the payment of certain specific sums of money alleged to have been fraudulently taken and applied by the said John D. Wilson in payment of debts due by the wife in respect of her separate property. The plaintiff prayed that said estate might be made subject to the repayment of said moneys by a sale under the order of the court; that “ all necessary and proper accounts may be taken under the order of the court.”
    The cause was tried by the court without a jury. The court found the facts as follows: 1. On or about the first of June, 1851, an arrangement was made between Matthews, the plaintiff, and John D. Wilson, the defendant, whereby Wilson was to manage and conduct a mercantile establishment at St. Louis, in the name of Matthews. Wilson did conduct the establishment, apparently without any control on the part of Matthews, by buying goods and selling goods, receiving and paying money, depositing and checking out funds, all in the name of Matthews. But whether Wilson so acted in the premises as the mere agent of Matthews, as claimed in the petition, or as a partner of Matthews, as claimed in the answer of J. D. Wilson, the court does not determine, because the contract of agency, in the terms stated in the petition, is not proved; and the contract of partnership, in the terms stated in the answer of Wilson, is not proved. 2. Matthews did not personally transact or manage the business of the concern, and was absent from St. Louis a considerable portion of the time, in which Wilson carried on the business. But he had access to the books, and the means to know the state of the accounts of the concern; and at the expiration of the first year of the business, that is, on or about the 31st of May, 1852, Matthews and Wilson together settled the accounts of the business down to that time, and by that settlement and the balance then struck by the parties it appeared that Wilson was indebted to the concern $1,584.46. This balance against Wilson was carried to his account on the books, with the knowledge of Matthews. The business continued to be conducted in the same manner until the 24th of January, 1853, or about that time, when Matthews refused to continue the business longer, and by mutual consent the connection was dissolved, and the accounts of the business settled by the parties. On that settlement it appeared that a loss had been incurred in the business, and that Wilson stood indebted to the concern in the sum of $2,873.22. 3. All the capital of the concern belonged to Matthews. Wilson was insolvent before the beginning of the business and still continues so. 4. Cornelia V. Wilson, wife of defendant, John D., had the separate real estate vested in her trustee, Charles Gibson, as stated in the petition ; and her husband, John D. Wilson, often acted as her agent in collecting and paying out money on account of said estate. But it does not appear that he was her general agent for the property, with power to manage and control it. 5. While John D. Wilson was conducting the said mercantile business in connection with Matthews, and during the first year thereof, he made considerable payments on account of the purchase and improvements of said separate estate of his wife out of the funds under his control, in the name of Matthews; all of which sums were entered on the books of the concern, and were items of the account settled and balanced by the parties on the 31st of May, 1852. 6. After the 31st of May, 1852, the said John D. Wilson appropriated other considerable sums of money out of the funds under his control in the name of Matthews in payment of the purchase money and the improvement of his wife’s separate estate; and- during the same time he received, on account of his wife’s separate estate, considerable sums of money, and deposited the same in the name of said Matthews, and to the credit of the bank account of the said concern ; and the money so deposited exceeded in amount the money so paid out. 7. The said John D. Wilson, in withdrawing the money from the concern and paying it out on account of his wife’s separate estate, was not guilty of fraud, as charged in the petition. 8. The defendant Cornelia is not proved to have had any knowledge or notice of any unfair practice (if any such there were) on the part of her husband against the plaintiff Matthews. In view of the record of the case and upon the facts found as above, the court is of opinion that the plaintiff has no right to charge upon the separate estate of the said Cornelia the moneys claimed by him in his petition; and therefore his petition ought to be dismissed.”
    Field, for plaintiff in error.

      S. T. Glover, for defendants in error.
   Scott, Judge,

delivered the opinion of the court.

The error in the proceedings in this cause of which the plaintiff complains is that the court below did not direct an account between him and the defendant Wilson. The peti~ tion does not allege that there was a partnership between the plaintiffs and the defendant Wilson. Wilson, as the agent or superintendent of a mercantile house for the plaintiff in St. Louis, is charged with the misappropriation of specific sums of money received in the course of his employment, and the aggregate of these misapplications is stated, with a prayer that the property of Wilson’s wife, to the improvement of which the money illegally taken from the plaintiff had been appropriated, may be sold to satisfy the indebtedness thus incurred. The specific sum for which relief is sought is set forth in the petition. Although an account is asked for, yet from the tenor of the statement of the cause of action it is obvious that the account sought was only ancillary to the main design of the suit, which was the recovery of the amount of the specific sums misapplied by Wilson. It is not alleged that Wilson withdrew any other sums than those specifically stated, and no account was prayed with respect to any other money. As the charge of misappropriation of money entrusted to him is met and denied by Wilson, and as the court below found the issues for him, we do not conceive that any useful purpose could have been subserved by directing an account, as, the issues being found for the defendants, it clearly appeared from the pleadings in the cause that there was no other ground of complaint against them. The petition as framed did not require a general account; it only sought the payment of specific sums of money which it was alleged had been misapplied by Wilson. If Wilson had been a partner of the plaintiff, such is the structure of the petition that no general account between them would have been necessary for the determination of the matters stated as the cause of the action.

Judge Napton concurring, the judgment is affirmed. Judge Richardson not sitting, having been of counsel.


author: Richardson, Judge,

text:
    Wood et al., Respondents, v. Steamboat Fleetwood, Appellant.
    1. The act concerning boats and vessels (R. C. 1845, p. 180J) applies to Doats and vessels owned in sister states as well as to those owned in Missouri. (Tore v. Steamboat C. Bealer, 26 Mo. 426, affirmed.)
    2. Where the rate of freight inserted in a dray ticket is “ 80 cents per hundred” and the clerk of a steamboat signs the same by mistake or oversight, and the shipper of the goods at the time he puts the same on board for transportation has no knowledge of the mistake, and when it is discovered refuses to pay a higher rate of freight and demands his goods of the boat, and its officers fail to re-deliver, the same, and transport them to their place of destination, they will not be entitled to demand in behalf of the boat more than 30 cents per hundred.

      Appeal from St. Louis Court of Common Pleas.

    This case has heretofore been twice before the supreme court. (See 19 Mo. 529 ; 22 Mo. 569.) On the last trial the court, among other instructions given and refused, gave the following at the instance of the plaintiffs: “1. If the jury believe from the evidence that the rate of freight was inserted in a dray ticket, and said ticket was afterwards signed by the clerk by mistake or oversight and the freight taken on board, the plaintiffs having no knowledge of such mistake or oversight at the time such freight was taken on board of the boat, but on the discovery of said mistake plaintiffs demanded the freight to be put ashore before the boat left, and the defendant refused to put it ashore, and brought the same to the place of destination, the bringing of such freight under the circumstances was an acceptance on the part of defendant of the contract contained in said dray ticket. 2. If the jury believe from the evidence that the rate of freight was inserted in a dray ticket at thirty cents per hundred, and that said ticket was afterwards signed by the clerk of defendant through mistake or oversight and the malt taken on board of the defendant, the plaintiff having no knowledge or notice of such mistake or oversight at the time such malt was taken on board of the defendant, and that plaintiff, when informed of such mistake or oversight and that more than thirty cents per hundred would be charged by defendant as freight money, refused to agree to pay more than thirty cents per hundred and demanded the re-delivery of the malt to them, and if the defendant refused or failed to re-deliver the same and brought it to the place of destination, then the bringing of the malt to St. Louis by the defendant, under the circumstances, was an assent or agreement by the defendant to transport the malt at the rate of thirty cents per hundred.”

      Knox & Kellogg, for appellants.
    I. As the owners of the boat resided out of the state, the court had no jurisdiction. (1 Newb. Adm’y, 101', 296, 443 ; Conck, Adm’y, 32, 370, 450; 18 How. 101, 283; 12 How. 443, 466 ; 5 How. 441.)
    II. The first and second instructions given by the court should have been refused. There was no evidence of any demand to put the freight ashore. The verdict was against the evidence and the instructions.

      R. T. & J. R. Barrett, for respondents.
   Richardson, Judge,

delivered the opinion of the court.

This suit was brought under our statute concerning boats and vessels for the breach of a contract of affreightment made in Pittsburgh and to be performed in St. Louis, where the ’cause of action accrued. It was shown that at the date of the contract and from thence continuously to the time of the institution of the suit the owners of the defendant were nonresidents of this state, and it is insisted that this fact of itself defeated the jurisdiction of our courts. The same question arose in the case of Yore v. Steamboat C. Bealer, decided at this term, in which it was held that boats navigating the waters of this state, no matter where the owners reside, are rightfully within the provisions of our law and stand in our courts on the footing of domestic vessels.

There was evidence to warrant the first and second instructions asked by the plaintiff and given. The drayman testified that as agent of the plaintiff he delivered the malt to the boat, and that the disagreement in reference to the price did not occur until after the malt was on board and he had requested the clerk to sign a bill of lading. Under all the circumstances his relation to the transaction was such as to authorize him to speak on that occasion for the plaintiffs, and if the freight was taken under a mutual mistake the defendant should have re-delivered it of carried it at the price mentioned in the dray ticket.

The judgment will be affirmed,

the other judges concurring.


text:
    Kurlbaum, Respondent, v. Roepke, Appellant.
    1. The revised code of 1855 does not require a finding of the facts where a cause is tried by the court.
    2. Where a cause is tried by the court without a jury and no instructions or declarations of law are asked or given, the supreme court will not interfere by ordering a new trial.

      Appeal from St. Louis Law Commissioner’s Court.

      Goodlett, for appellant.

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

delivered the opinion of the court.

This suit was commenced after the code of 1855 was in force. The case was tried by the court, the parties having waived a jury. The present code does not require a finding of the facts when the issues in a cause are tried by the court. The old practice in such cases is now revived. When a cause is tried by the court sitting as a jury and no instructions or declarations of law are asked or given on the trial, this court will not interfere by ordering a new trial.

Judge Napton concurring,

the judgment is affirmed.


text:
    McClellan & Hillyer, Respondents, v. Parker, Appellant.
    1. Where an agent enters into a contract in his own name and does not disclose his principal he is personally liable.

      Appeal from St. Louis Law Commissioner’s Cowrt.

    This was an action to recover the value of services rendered by plaintiffs, as attorneys at law, in the examination of the title to certain real estate and in the drafting of a deed of trust. The evidence tended to show that defendant applied to one McKnight for a loan of money on real estate; that McKnight referred defendant to plaintiffs for an examination of the title to the said real estate; that plaintiffs made such an examination. Evidence was introduced by plaintiff, against the objection of defendant, tending to show a custom ^that borrowers, in such cases as the present, pay the expenses of examinations. There was evidence tending to show that Parker acted as the agent of other parties in negotiating the loan.
    The court found for plaintiffs.

      Glover and Gilmer, for appellant.
    Moody, for respondents.
   Scott, Judge,

delivered the opinion of the court.

This case did not require the proof of any custom; but evidence of such custom was merely irrelevant. It had no tendency to mislead or prejudice, and therefore the admission of it is no ground for reversal.

The defendant acted as agent for others. It does not appear that he disclosed the names of those for whom he was acting, or that the credit was given to any one but himself. Under such circumstances, though acting for others, he is personally liable. The principals, if they had been known to the plaintiffs before suit was brought, would have been subject to an action, but under the circumstances they were not bound to sue them.

As the defendant had the services performed he was liable for them. This was no case for the application of the custom even if it were a lawful one. Had the money lender employed the plaintiffs, and the suit been brought against the borrowers for their services, then the custom, if a valid one, would have applied to the case. The judgment is affirmed,

Judge Napton concurring. Judge Richardson not sitting.


text:
    Smock et al., Respondents, v. White, Appellant.
    1. It is the settled practice of the supreme court not to interfere with the verdicts of juries because they are against the weight of evidence.

      Appeal from St. Louis Court of Common Pleas.

      Hudson & Thomas, for appellant.

      S. T. & A. D. Glover, for respondents.
   Napton, Judge,

delivered the opinion of the court.

No point of law is presented by this record. No instructions were asked or given. The jury passed upon the question of fact submitted and the court sanctioned the verdict of the jury. No objection was made to the testimony on either side. It is a settled practice of this court not to interfere in such cases. The judgment is affirmed.

Richardson, Judge, not sitting, having been of counsel.


text:
    Menkens, Appellant, v. Watson, Respondent.
    1. One who ratifies an act done in his name without previous authority ratifies it as done; he can not make such an agent responsible for not doing the ratified act in the manner he would have been bound to perform it if he had been an authorized agent.

      Appeal from St. Louis Court of Common Pleas.

    The petition in this case states that on the 28d of April, 1849, plaintiff entrusted to one Andrew Duhring, who was then on the point of departing to California, an amount of jewelry of the value of $1,556.67 ; that on or about said date said Duhring started for California; that he died before reaching Sacramento city; that the jewelry was delivered to certain auctioneers in Sacramento city, who sold the same on account of whom it might concern; that on or about October 24, 1849, one Hastings was appointed administrator of the estate of said Duhring; that he gave bond, &c., and received the amount of said sales; that he made his final settlement, from which it appeared that 11,198.80 was found due plaintiff, Menkens, the goods found in Duhring’s possession having been delivered to him as plaintiff’s agent; that on or about November 13,1851, defendant, Watson, “ representing himself to said administrator as having authority so to do, collected the said amount of $1,193.80 so coming to plaintiff as above shown from said administrator, for which he gave a receipt in full for $1,000 that by reason of the premises defendant is justly indebted to plaintiff in the sum of $1,193.80, with interest, &c.
    The following is the finding of the facts by the court: “ On the 23d of April, 1849, the plaintiff placed in the possession of Andrew Duhring, as plaintiff’s agent, the jewelry and watches in the petition mentioned, to be taken by said Duhring to California and sold for the plaintiff on commission, valued at $1,556.67. Whilst said Duhring was on his way to California he died and said jewelry and watches were taken by John Turner, who had been requested by the plaintiff to take charge of the same if any accident happened to said Duhring. Said jewelry and watches were, with the consent and under the direction of said Turner, sold at auction in Sacramento city, in the state of California, and the proceeds thereof were paid over by the auctioneers, on the order of said Turner, to S. C. Hastings, who was acting at the time as administrator of said Duhring. The said Hastings had in his possession, of said proceeds, 11,193.80, which sum he loaned to Berryman Jennings, with the approbation of the judge of the court making the appointment of said administrator. Said Jennings became insolvent. The defendant, representing himself to be the agent of the plaintiff duly authorized to settle with said Hastings, gave the receipt offered in evidence, having settled with said Hastings by receiving from him a contract for lands, as specified in said receipt, the title to which land completely failed. The defendant never received from said Hastings any thing except said contract. No amount was found by said court due to the plaintiff on the final settlement of said administrator, nor did the defendant ever collect or receive from said Hastings for or on account of the plaintiff, or purporting to act as plaintiff’s agent,any money whatever. As such agent for plaintiff the defendant did receive a contract for land as stated in said receipt and did sign said receipt, but never received possession of or a deed for said land, and the title for said land has entirely failed. Whereupon the court declares that the plaintiff is not entitled to recover, and gives judgment for the defendant.” The receipt mentioned in the petition is not found in the record. The following receipt appears in the brief of the plaintiff’s counsel: “ Sacramento city, November 13,1851. Received of S. C. Hastings $1,000 by contract and sale of one-tenth of a certain tract of land described in a written contract of even date herewith, in full satisfaction of all demands against the said Hastings as administrator of Andrew Duhring, deceased, by the heirs, creditors or any person interested in said estate. R. J. Watson.”
    The court gave judgment for the defendant. Plaintiff filed his motion for review, which being overruled, lie appealed.

      Whittelsey, for appellant.
    1. The defendant, acting as plaintiff’s agent to collect what belonged to plaintiff, received the amount in land which he had no authority to do, and the plaintiff has never ratified his acts. He could only collect in money. (10 B. & 0. 760; 4 B. & Aid. 210, 395 ; 2 Y. & Coll. 414; 1 B. & Ad. 605; 11 Texas, 764; 33 Eng. L. & Eq. 321; Sto. on Ag. § 98, 181, 413, 99.) Having received payment in land for his own benefit, he is liable to his principal for the whole amount. (1 Am. Lea. Gas. 480 ; 3 Mass. 403; 6 Watts & Serg. 264.)

      H. N. Hart, for respondent.
    I. The facts found warrant the judgment.
   Scott, Judge,

delivered the opinion of the court.

The most important paper in this cause and one which is the foundation of the defendant’s liability is neither to be found in the record nor is it set out in the finding of the court. It seems that the money of the plaintiff, which was due from the estate of Duhring, was lost by loaning it out to one who proved afterwards to be insolvent. It does not appear that the administrator Hastings was liable for this loss, as the law of California in relation to this subject was not given in evidence. The inference would seem to be that ho was not liable, as it is stated that the loan was made with the approbation of the judge who made the appointment of the administrator. Now, if the plaintiff’s debt was lost before the defendant interfered, a strong reason would be required to subject him to its payment — stronger than any found on the record. The motive of the defendant in giving the receipt and acting as agent for the plaintiff should have been shown. If the defendant had no authority to act in the matter, his conduct might have been disclaimed, and Hastings, if he was liable, might still have been compelled to pay the debt. The defendant not being a regularly constituted agent, but only becoming so by the adoption of his act, his act must be taken as it is, and it can not be made a ground for treating him as though he was a lawful agent. As the plaintiff seeks to subject the defendant to liability by reason of the receipt, it should have been set out in the record. The principle that an agent can not receive any thing but money in payment of a money demand is a correct one, but its application under the circumstances of this case is not very apparent.

The judgment is affirmed;

the other judges concurring.


text:
    Andrews, Respondent, v. Lynch, Appellant.
    1. The objection that a petition does not state facts sufficient to constitute a cause of action is not waived by a failure to take same by demurrer or answer.
    2. A petition alleging that the plaintiff delivered a slave belonging to him to the defendant for safe keeping, he agreeing to pay defendant a certain sum per day; that said slave had never been delivered by defendant to plaintiff although plaintiff had demanded said slave from him, is defective; it alleges no contract to re-deliver, no conversion of the slave by defendant, no loss through the negligence of defendant.

      Appeal from St. Louis Circuit Court.

    The petition in this case is as follows: “ Plaintiff states that he was the owner of a slave named David, aged about twenty-three years, a slave for life and dark copper color; that heretofore, to-wit, on the 31st day of October, 1854, the plaintiff delivered said slave to the defendant for safe keeping, and for which the plaintiff agreed to pay the defendant thirty cents per day, including the board of said slave; that said slave has never been delivered by said defendant to the plaintiff, although the plaintiff in November, 1854, demanded said slave from the defendant and the defendant refused and neglected to comply with said demand; and said defendant has ever since and does yet refuse and neglect to deliver said slave to the plaintiff; that said slave was worth $1,200 in cash, and his hire per month $25, making in all the sum of $1,500, in which sum the plaintiff says the defendant is indebted to him, and for which,” &c.

      The following are the only instructions given to the jury, given at the instance of the defendant: “ 1. If the defendant used in keeping the plaintiff’s negro that amount of care which persons of ordinary prudence in their business ordinarily take of their own property, and, notwithstanding, the slave escaped, the defendant is not liable, and the burden is on the plaintiff to show that defendant did not use such care. 2. If the jury find from the evidence that the plaintiff’s slave escaped from defendant’s premises, he can not recover unless the escape was through the negligence of the defendant or his servants, and the burden of proof is on the plaintiff to show that said slave escaped by means of such negligence, and in the absence of such showing the jury ought to find for the defendant.” The following instruction asked by defendant was refused: “ 3. If the plaintiff’s agent who caused the negro mentioned in the petition to be placed in the defendant’s possession knew before the 31st of October, 1854, that a negro boy belonging to the defendant watched at the outer door, and opened the same to admit persons, he can not in this place complain that the defendant was guilty of any negligence in permitting said negro boy to watch at the front door and to manage the key thereof.” Instructions asked by plaintiff were refused.
    The jury found for plaintiff.

      S. T. & A. D. Glover and Hannegan, for appellant.
    I. There was a total want of proof on the question of negligence.
    II. The court erred in refusing the third instruction. (Sto. on Bail. § 74; 13 Ala. 588; 38 Maine, 55; 10 Mo. 568.)
    III. There is no averment of negligence in the petition. The law of bailments was construed throughout on the same rules that apply to inanimate property. This was incorrect. (See 2 Pet. 150 ; 3 Johns. 170 ; 4 Mart. 55 ; 2 Wheat. 100 ; 10 Mo. 568.) The petition was defective.

      Shreve, for respondent.
   Napton, Judge,

delivered the opinion of the court.

This case was submitted to the jury upon instructions asked by the defendant, and the verdict being against him he has certainly no right to complain of the instructions given. The third instruction he asked was properly refused, as the circumstance alluded to in that instruction was in evidence before the jury and it was not the province of the court to say what inference they should draw from it. There was evidence of negligence before the jury which justified the verdict rendered; and we should have no disposition to disturb it on the ground of any supposed preponderance of testimony one way or the other.

But we do not see how this judgment can be sustained upon such a petition. There was no averment of negligence in the petition. It is true, the defendant did not demur, but putjn an answer averring due diligence on his part and a loss of the negro without his fault, and the case was tried upon the question of negligence or no negligence, upon the basis of the defendant’s answer. There was no issue in the case; indeed, no cause of action whatever, so far as I can discover, is stated in the petition. It states a bailment of a slave to defendant for safe keeping, and a refusal of defendant to deliver him up when requested. It is nowhere averred that it was the duty of the defendant to deliver up the slave on request, or that any. contract was made, express or implied, to this effect, or that any contract was broken. No conversion is alleged to make it an action of trover (at common law), or any contract stated by which it could be construed as an assumpsit, or any misfeasance or negligence to bring it within the class of actions on the case. The gist of the action, as the facts developed on the trial show, was negligence, but there was no averment on this subject.

The old rule of the English judges that a verdict would supply whatever of necessity must have been proved to the jury has never been held to extend to cases where the gist of the action is omitted. Nor have the various statutes of amendments and jeofails enacted in several of onr states and embodying this principle ever been construed to embrace a case where no cause of action is stated. (1 Bac. Abr. p. 16; 1 Petersdorf Ab. 871; Winston’s Exec’r v. Francisco, 2 Wash. 189; Chichester v. Voss, 1 Call, 71.) Our statute upon this subject contains nothing new or additional to the old rule. (2 R. C. 1855, p. 1256, clauses 8 and 9.) Indeed, the 10th section of the 6th article of the practice act (R. C. 1855, p. 1232) declares that the objection, that the petition does not state facts sufficient to constitute a cause of action, is not waived by a failure to demur or to suggest the objection in the answer.

The defendant in this case, under the instructions given by the court, was held to that degree of diligence “ which persons of ordinary care in their business ordinarily take of their own property.” The instruction was the defendant’s, and it was certainly not for him to complain of it; but, as the case goes back, we may with propriety suggest whether such a rule of diligence as this is applicable to bailees of this character. If by “ ordinary care in their business” is meant such care as was reasonably to be expected of persons engaged in the business which defendant followed, there can be no objection probably to it; but if it was meant merely to require that care or watchfulness which a master usually exercises over his slaves on his farm, or in his work-shop, or about his house, that is not the diligence which he is expected to exercise who is employed in the business defendant undertook.

Judge Scott concurring, the judgment is reversed. Richardson, judge, not sitting, having been of counsel.


text:
    Frenz, Plaintiff in Error, v. Frenz, Defendant in Error.
    1. Judgment affirmed.

      Error to St. Louis Circuit Court.

    Kribben, for plaintiff in error.

      Goodlett, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

This cause is before us on a writ of error. No point of of law is raised by the record. The sole object of the plaintiff is to obtain a reversal of the judgment of the court below on the ground that the facts warranted a different result from that obtained by the court. We have looted into the evidence preserved in the record and are of opinion that it would not warrant us in disturbing the action of the court below.

Judge Napton concurring,

the judgment will be affirmed.


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    Johnson’s Administrator, Respondent, v. McCune, Appellant.
    1. A statement, in a letter to a party sought to be retained as clerk of a boat then building, that the boat ■was expected out at a specified time, can not be construed into a guaranty or engagement that she ■would be out at the time named. (Johnson v. McCune, 21 Mo. 211.)

      Appeal from St., Louis Court of Common Pleas.

    This case has heretofore been before the supreme court. (See 21 Mo. 211.) The plaintiff introduced in evidence a letter of defendant, which is as follows: “ St. Louis, February 7, 1852. Mr. Willis C. Johnson: Dear Sir — I named to you that the company would want your services, last fall when you were about to leave, since which we have made an arrangement with Capt. Dean to take charge of the new boat to be called the Jeanie Deans, and you to go with him. You'will please let us know, at your earliest convenience, if it will suit your arrangements .to go on her. She will not be out as soon as her contract calls for, on account of the severity of the winter. However, we expect her to be out in April. Yours respectfully. [Signed] J. S. McCune.”
    Plaintiff also introduced in evidence the following letter from Willis C. Johnson to the defendant McCune: “ St. Louis, Mo., September 8,1852. Mr. John S. McCune: Dear Sir — Last fall you spoke to me in regard to a clerkship in your packet line from St. Louis to Keokuk, and requested me to hold myself in readiness in the spring when navigation should open, to [go] on one of your packets as clerk on the same terms I was clerking on the £ New England.’ You were kind enough to commend my faithfulness and business capacity and I promised you I would make no other arangement that might conflict with taking a clerkship on your line in the spring. In the winter you repeated the request (I think in February) and specially retained me as clerk on the Jeanie Deans, and stated that my services would be needed in April, as the boat would then come out; and you also requested my express agreement to go on the Jeanie Deans at that time. And I handed a note to Mr. Daniel Able, which he gave you, signifying my consent to be clerk on the Jeanie Deans. Now, sir, ever since that time I have been in the constant expectation of the Jeanie Deans coming out, so that I might go to work. In order that I might not disappoint you and the company for whom you act, I have made no other arrangements at all, hoping continually to go upon the Jeanie Deans according to the mutual understanding. When other situations have been offered me I have declined them for the reason mentioned. You may judge how surprised I am, under these circumstances, to find that, after all this delay and disappointment to me, the ‘Jeanie’ has come out and is now running without notice to me, and that the clerkship has been given to another. I am confident that it is yonr intention to do me justice in the premises. It is impossible to think that yon contemplate any thing else. I respectfully await your reply to this letter, and will repeat that I rely on your sense of justice for a fair answer. Address me at the Monroe House. I had intended to calí and see you and have more conversation than we could have this morning on the street, but I am not very well. Please let me hear from you. Very respectfully. W. C. Johnson.” The plaintiff also introduced in evidence McOune’s reply to this letter.
    The court gave the following instruction asked by defendant : “ 9. The letter of defendant of date of February 7, 1852, is not a guaranty on the part of defendant that the Jeanie Deans should come out in the month of April, or at any specific time; nor does it operate as an agreement that said boat should come out in the month of April or at any other time.”
    The court also gave the following instructions for the plaintiff: “1. If the jury believe from the evidence that the defendant contracted'as charged in the petition with Johnson for his services as first clerk of the steamer Jeanie Deans at the usual or reasonable rate of compensation for said services, said services to commence when said steamer came out and began running, and agreed that said steamer should come out and commence running in April, 1852, notified said Johnson that said steamer was expected to come out and commence in the month of April, 1852, and said Johnson remained ready and willing to fulfil said contract on his part from said month of April until September 15, 1852, and that said steamer came out and began running prior to said September 15th, and the defendant refused to comply with his contract or to accept the services of said Johnson as contracted for and failed to notify said Johnson of said refusal prior to said September 15th, then the jury will find for the plaintiff and assess the damages at the usual rate of compensation therefor for the time said Johnson was out of employment in consequence of said contract up to said September 15, 1852 ; unless the jury further believe from the evidence tliat the contract aforesaid was made under a custom of the company known to said Johnson that the contract might be rescinded at any time thereafter by the defendant or company, if .the -captain of said steamer was changed and desired a change of clerks, and said contract was so rescinded and the defendant notified thereof prior to any damage sustained by the said Johnson from the nonperformance of said contract by the defendant and ¡the said Keokuk packet company. 2. If Johnson was employed by defendant in February, 1852, to go as first clerk on the Jeanie Deans when she should come out, and also agreed the said boat should come out in April, 1852, and said Johnson held himself in readiness to perform said agreement on his part, and defendant was not ready to accept his services until August 18th, and then failed and refused to accept the same, they will find for plaintiff the value of plaintiff’s services, whether rendered or not.”
    The jury found for plaintiff.

      Shepley, for defendant.

      S. T. & A. D. Glover, for respondent.
    I. Instructions numbered one and two, given for the plaintiff, were given on the first trial, and passed the ordeal of this court when the case was here before.
   Napton, Judge,

delivered the opinion of the court.

The instructions in this case are inconsistent with each other. The court declares that McCune’s letter of February, 1852, did not amount to a contract that the Jeanie Deans should be out in April, in accordance with the decision made by this court when the case was here before; (see 21 Mo. 215 ;) but gives the first and second instructions on behalf of the plaintiff, which are altogether based upon the hypothesis that such a contract was made. The only proof of such a contract was McCune’s letter of February, 1852.

The plaintiff’s conduct and letter of September 3d, 1852, are not at all reconcilable with the claim he asserts in this, case for wages froha April 1, 1852, to September 15, of the same year. The letter of the 3d of September does not allude to any claim for back wages, and if he had then been employed would he have been entitled to wages from the 1st of April ? Is it not remarkable that from the 1st of April to the 18th day of August, when the Jeanie Deans made her first trip, that Johnson never made any inquiries of the company relative to the time they would probably want his services, and never advised them that he considered himself all that time on wages ? Ought he not, if he so regarded the engagement between him and McCune, to have reported himself and informed them that he was idle, waiting on them for employment ? Is it not reasonable that such would have been his course ? If the company had been apprised of this, and had understood the contract as he did, they might, with his consent, have furnished him with other employment equally acceptable to him and profitable to them. But it does not appear that from the 1st of April down to the 18th of August the plaintiff, though frequently in St. Louis, ever mentioned the subject to McCune, and it was not until the 3d of September that he spoke to him, and his letter of that'date does not complain of the nonpayment of past wages.

If no wages for the time previous to the coming out of the Jeanie Deans were due to Johnson, then the damages arising from the breach of the contract to employ him at that time, if such a breach occurred, must be estimated as they would be for the breach of any other contract, without reference to what had occurred previously.

The judgment is reversed and the cause remanded;

Judge Scott concurring. Judge Richardson not sitting, having been of counsel.