text:
    Price, Defendant in Error, v. White, Plaintiff in Error.
    1. When an agreement to submit a matter in dispute to arbitration describes the subject of dispute thus : “ A matter in difference between the parties and the parties afterwards appear before the arbitrators and litigate a matter without any denial that it is the subject of dispute between them, they should not afterwards be heard objecting to the vagueness and indefiniteness of the agreement.
    2. Where a notice is given that a motion will be presented to a court on the first Monday of May for the comfirmation of an award, and the legislature afterwards changes the time of holding said court from the first to the second Monday, the notice will be sufficient; the party to whom the notice is given must take notice of the change.

      Error to Osage Circuit Cowrt.

    Barbara Price and George 0. White entered into the following agreement to submit a matter in difference between them to arbitration: “ Know all men by these presents, that we, Barbara Price and George C. White, both of the county of Osage and state of Missouri, respectively agree to submit a matter now in difference between us to an arbitration, the following persons having been selected to arbitrate and make an award accordingly, to-wit: John M. Laughlin, Samuel S. Farrier and John C. Bryant. We, the undersigned, Barbara Price and George C. White, agree in said submission that the award of said arbitrators shall be final, and that the said award [shall be] entered on the docket for the circuit court clerk, and become a judgment at the next term thereof to be liolden in said county; this, the 16th day of December, 1856. [Signed] Barbara Price, George C. White.”
    The arbitrators met and made their awards on the said 16th day of December, 1856. They made two awards, both dated December 16, 1856 — one of which was filed in the office of the clerk of the Osage circuit court, January 31, 1857 — the other was filed March 2,1856. They were substantially the same, and were in favor of Barbara Price. At the May term of the Osage circuit court, this award was confirmed on motion of said Barbara Price. White was notified that a motion would be made for the confirmation of said award by the circuit court on the first Monday of May, 1857. When this notice was given does not appear.

      Edwards and Mc Cord, for plaintiff in error.
    I. Notice that a motion would be made at a court to be held on the first Monday was not such a notice as would authorize 'the court held on the second Monday to confirm the award. The agreement to submit was too vague. Admitting it to be good, the arbitrators clearly exceeded their authority. The supposed submission authorized the arbitrators to act upon “ a matter in differencethe award proposes to decide three separate and distinct matters in difference. The award is uncertain and void. (R. C. 1855, p. 187, § 18 ; Walton v. Walton, 17 Mo. 396.) The supposed submission does not designate what circuit court should enter judgment on the same.

      Muir & Draffin, for defendant in error,
    cited 9 Mo. 39, 49, 355 ; 13 Mo. 107 ; 12 Mo. 161; 8 Mo. 709 ; 7 Mo. 224 ; 11 Mo. 358, 623-4; 10 Mo. 459, 515 ; 4 T. R. 146.
   Scott, Judge,

delivered the opinion of the court.

This was a submission to arbitration entered into in pursuance to tbe first section of the act in relation to that subject. The statute enumerates the causes for which an award under that section shall be vacated, and directs that unless it is thus vacated it shall be confirmed. None of the steps required by law were taken by the defendant to have the award vacated. The objections to the award were all formal and such as might have been corrected under the 30th section of the act if the party had seen proper to have had it done ; but having failed to do so, he will not be permitted now. to raise them in this court.

The defendant complains that the agreement for a submission is too vague and indefinite in its description of the subject of dispute, its language being “ a matter in difference between the parties,” without any thing more showing the suject of the difference. We do not undertake to say what would have been the force of this objection in an action on the agreement to submit in the event there had been a refusal to arbitrate under it. A reference of all matters of difference between the parties is good. The plaintiff and defendant having agreed to submit a matter in difference between them, having appeared before the arbitrators and litigated a matter without any denial that it was the subject of dispute between them, the defendant should not be heard objecting to the bond in this form of proceeding. If the defendant conceived that the award was too vague for his protection from future litigation, the statute pointed out to him a way to have it corrected.

The agreement to submit sufficiently shows that the circuit court of Osage county was the court in which the award was to be entered as a judgment. As the parties represented themselves to be “ of Osage county” in the article of submission, in stipulating that the award should be entered as a judgment at the next term of the circuit court in said county they clearly indicated the court they had in contemplation.

The objection to the notice of the award is not saved. It does not appear when the notice was served, though it is stated that at least fifteen days’ notice in writing was given to the defendant. The award was made on the 16th of December, 1856. The acts changing the times of holding courts in Osage county was passed on the 15th day of January, 1857, and took effect immediately after its passage. (Sess. Acts, 1856-7, p. 467.) Now if the notice of the award was served between the 16th of December, 1856, and the 15th day of January following, it was then good; and if the general assembly afterwards changed the time of holding court, the party served with notice should at his peril have taken notice of the change.

It is objected that the court erred in disregarding that portion of the award which directed that the defendant “ should winter with roughness the cattle of the plaintiff.” This act.was for the benefit of the plaintiff, and the omission of the court to enforce it was an advantage to the defendant. The plaintiff consented to the action of the court. Nothing is clearer than that an award may be good in part and bad in part, and the bad part may be rejected when it is so unconnected with the residue that it may be seen that its rejection does not affect the justice nor the correctness of that portion of the award which is retained. It sufficiently appears that the part of the award which was disregarded had no such connection with the portion retained that its rejection could possibly affect the defendant in an injurious manner.

The statute does not prescribe the length of time the parties shall be notified before the hearing. As it appears from the award that the defendant appeared before the arbitrators, he could not afterwards object to the want of notice. As he appeared, if the notice was too short, or if he had had none previously, he might have applied for a postponement, which the arbitrators were empowered to grant.

The fact that the award directed money to be paid and different articles of produce to be delivered to the plaintiff, did not show that there was more than one matter in difference between the parties considered by the arbitrators. There were two awards filed in the clerk’s office by-the plaintiff. We do not see that there was any substantial difference between them. The one imports no more than the other. If the corn and bacon could not be had, the value of it at the time of the award might have been recovered by an action on the award. The court can compel the performance of the award by attachment. That would, we suppose, be the proper process to compel the performance of so much of the award as relates to the delivery of the produce. If the defendant is too poor to comply and has not the means, that would be a subject of consideration, regard being had to the law which prohibits imprisonment for debt. It was a matter of concern to the plaintiff only, that the court gave the defendant the option of paying in corn and bacon, or its value.

The defendant is not injured by the judgment of the court. He can relieve himseelf by performing the award as it was originally made. That the court has given him the option of performing the award, or doing something else, is to his advantage, and not to his prejudice. He can not complain. (Gentry v. Barrett, 5 J. D. Marshall, 317.)

Affirmed.

The other judges concur.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Wadlow, Plaintiff in Error, v. Perryman’s Administrator, Defendant in Error.
    ’ 1. In an action on a warranty of soundness of a negro slave, the declarations of such slave with respect to her symptoms, made by her when sick, are competent evidence as hearing upon the question of unsoundness.

      Error to Greene Probate and Common Pleas Court.

    This was an action on a warranty of soundness of a slave. At the trial, plaintiff offered in evidence the declarations of said negro slave with respect to her symptoms, made when she was sick to those in attendance upon her. The court refused to permit the evidence to be introduced. The plain tiff took a nonsuit, with leave to move to set the same aside.

      Hendrick, for plaintiff in error.
    I. The court erred in excluding the offered testimony. (Marr v. Hill & Haynes, 10 Mo. 323.) '

      Price and Foster, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

We see no difference between this case and that of Marr v. Hill & Haynes, 10 Mo. 333. The evidence offered by the plaintiff of the declarations of the slave, made whilst she was laboring under sickness, as to the cause of her illness and the source of it, were admissible, and the court erred in excluding them. With the concurrence of the other judges, the judgment is reversed and the cause remanded.


text:
    Lacy, Plaintiff in Error, v. Williams, Defendant in Error.
    1. The general appellate jurisdiction that the circuit courts exercise over the county courts does not authorize them to try de novo causes appealed from the county courts.
    2. Generally, the domicil of the parent is the domicil of the minor child.
    3. Curators of the estates of minors can not he appointed by the county courts of counties in which such children do not reside.

      Error to Polk Circuit Court.

    George M. Williams was appointed by the county court of Polk county curator of the .estates of three minors, who were and still are under the age of fourteen years. At the time of this appointment said minors resided in Cedar county. They owned land in Polk county. On the motion of their mother, Mrs. Lacy, the county court revoked the appointment of Williams. He appealed to the circuit court. The ■ circuit court, baying beard tbe evidence, vacated tbe order of tbe county court displacing Williams, and directed tliat he be reinstated as curator. It is to obtain a review of this action of the circuit court that Mrs. Lacy brings tbe cause by writ of error to this court.

      F. P. Wright, for plaintiff in error.
    I. In a case like tbe present, there is no appeal to the circuit court. Tbe remedy was by writ of error or mandamus. Tbe minors being residents of Cedar county, the county court of that county bad the sole right of appointing curators of their estates. (R. C. 1855, p. 823, § 8, 9.) Tbe mother had the right to be appointed curator.

      Freeman, for defendant in error.
    I. The county court could not revoke its appointment of Williams as curator without giving him notice. Its attempt to do so was illegal. Mrs. Lacy was a married woman and could not act as curator. (R. C. 1855, p. 822.) Even if the county court committed error in appointing Williams curator, since the plaintiff in error was and still is a married woman she had no power to appear either in the county or the circuit court by.attorney without joinder of her husband. An appeal lies from the order of the county court in this case to the circuit court. (R. C. 1855, p. 533, § 8.)
   Scott, Judge,

delivered the opinion of the court.

The second section of the 14th article of the practice act (R. C. 1855, p. 1295) directs that a writ of error shall issue on the final decision or judgment of the county court from the circuit court. The 4th clause of the 8th section of the act to establish courts of record and prescribe their powers and duties (R. C. 1855, p. 533) gives the circuit court appellate jurisdiction from the judgments and orders of county courts and justices of the peace, in all cases not expressly prohibited by law, and also confers a superintending control over them.

Except in a few instances expressly mentioned, the law seems to be silent as to the mode in which the benefit of appeals and writs of error shall be obtained on a judgment or decision rendered in the county court. No method is pointed out as to the manner in which the evidence shall be preserved in the inferior courts for the use of the superior court. A. trial de novo in the circuit court would not strictly be the exercise of appellate jurisdiction. (The County of St. Louis v. Sparks, 11 Mo. 203.) It is clearly competent for the general assembly to confer such a jurisdiction, but until it is expressly done we do not consider that the bestowal of a mere appellate power would authorize the courts to try causes de novo. It is obvious that a writ of error, without the authority to take bills of exceptions on the trial, would in most cases be ineffectual for the attainment of the ends proposed by such a process. Our legislation on this subject is defective, and requires some addition in order to give parties the full benefit of appeals or writs of error on the final decisions of the county courts. Under this state of legislation on this subject, it was held at the last term, in the case of Lewis v. Nuckols, 26 Mo. 278, that an appeal performed nothing more than would be effected by a writ of certiorari.

The county court of Polk county had no authority to appoint a curator for children who were not residents of the county. The order of appointment was void and may be treated as a nullify in a collateral proceeding. Regularly, the domicil of the parents is that of their children, and whilst the mother was a resident of Cedar county, a curator for her children could not be appointed by the county court of Polk county. This is the only safe rule, and the only one that will prevent confusion and conflict in the administration of the estates of minors. If one county court, because the minor has land in the uounty, may appoint a curator for him, so may every court where there is land in the county belonging to the minor, and so there would be many curators for the same child, and no subordinatian nor concert among them, nor any means of enforcing it. (Ludlow’s heirs v. McBride, 3 Ohio, 240; Maxom v. Sawyer, 12 Ohio, 206.)

For the reasons stated in the preceding part of this opinion, this cause will be dismissed, leaving the judgment of the county court rescinding the order appointing the curator in full force.

The other judges concur.


author: Richardson, Judge,

text:
    Thomson, Plaintiff in Error, v. Roatcap, Defendant in Error.
    1. Unless it is expressed in a promissory note that it is “ for value received, negotiable and payable -without defalcation,” the maker thereof will be allowed against an assignee of the same every just set-off or other defence that existed at the time of or before notice of the assignment as against the assignor thereof.

      Error to Cooper Court of Common Pleas.

    This was an action on the following promissory note: “ $77.50. Twelve months after date, I promise to pay Wm. W. Norris seventy-seven dollars and fifty cents, without discount or defalcation, for value received, this 1st day of October, 1856. [Signed] John Roatcap.”
    The defendant denied knowledge of the alleged assignment of said note by Norris to plaintiff, and alleged that on the first of August, 1857, before said note became due, and before the time of the alleged assignment, he paid to Norris on said note the sum of $75, which he, Norris, agreed should be in full satisfaction of said note.
    It appeared in evidence that on the first of August, 1857, defendant paid Norris seventy-five dollars on account of said note and took Norris’ receipt; that on the 9th of September, 1857, plaintiff purchased said note of Norris in good faith without any knowledge of the payment by defendant thereon. The court, at the request of defendant, gave the following declarations of law: “ If defendant paid to Norris the sum of seventy-fire dollars on said note before the assignment of said note, and Norris agreed to accept the same in full satisfaction of said note, then the defendant is entitled to a verdict, and if seventy-five dollars was paid only as a credit plaintiff is entitled to a verdict for balance. 2. The court declares the law to be that the payer of a non-negotiable note may, before notice of the assignment of said note, pay the amount of the same to the payee, and thereby protect himself against a recovery by the assignee. 3. The court declares the law to be, that if the defendant paid the sum of seventy-five dollars on said note before the same was due, and the payee accepted the said amount as a full satisfaction of said note, then said payment amounts to an accord and satisfaction, and the defendant is entitled to a verdict.”
    The court rendered judgment for plaintiff for the balance due after allowing a credit of seventy-five dollars upon the note.

      Stephens & Vest, for plaintiff in error.
    I. The court erred in refusing the declarations of law asked by plaintiff. (Odell v. Gray, 15 Mo. 337 ; R. C. 1855, 1290 ; Chitt. on Bills, 266; Sto. on Notes, § 191, 192; Sto. on Bills, § 188 ; Smith v. Ashley, 20 Mo. 354.) The court erred in giving the instructions asked by defendant. (Ib.)

      Hutchison, for defendant in error.
    I. The court properly declared the law of the case. The defendant was entitled to a credit for the amount paid on the note previous to the assignment. (R. C. 1855, p. 322, § 3 ; id. p. 1026, § 20.) The note sued on was not negotiable under the statute ; nor is it a negotiable note at common law.
   Richardson, Judge,

delivered the opinion of the court.

The instrument ¡hied on in this casé is a note within the description of the first section of the act concerning bonds and notes; (R. C. 1855, p. 319 ;) and by the second section is mado assignable, so that the assignee can maintain an action tliereon in his own name against the maker, in like manner as the payee could have done. But it is not a negotiable note within the meaning of the 15th section of the act concerning bills of exchange, for the effective words to give it that character, viz., “for value received, negotiable and payable without defalcation,” are omitted, and therefore it has not the same effect as an inland bill of exchange. This note then stands on the same footing of an ordinary promissory note, transferable, but not negotiable; and the assignment of it to the plaintiff did not defeat any defence which the maker had at the time of the assignment against the payee, for the third section of the act first mentioned declares that “ the obligor or maker shall be allowed every just set-off or other defence against the assignee and the assignor existing at the time of or before notice of the assignment, unless it shall be expressed in the bond or note that the same is for value received, negotiable and payable without defalcation and the fifth section provides that the assignee shall not obtain any greater title to, or interest in, any bond or note than the person had from whom he acquired it.

It will be observed that there is a difference in the provisions of the revised acts of 1845 and 1855 on the same subject, and that the third section of the act of 1855 is a substitute for the third and fourth sections of the .act of 1845. By the third section of the old law, a set-off against the assignor before the assignment was not allowed if it was expressed in the note or bond that the sum therein specified should be paid without defalcation or discount; but a note or bond under the present statute must contain other words, “ for value received, negotiable and payable without defalcation,” to prevent the maker from pleading a set-off against the assignor existing at the time or before notice of the-assignment.

The payment in this case was made before the note was assigned, and the right to set up that defence was not impaired by the assignment of the plaintiff, for he acquired no greater interest in the note than the person had from whom he acquired it, and he took it subject to all the defences which the maker had against the payee at the time of the assignment. The judgment will be affirmed,

the other judges concurring.


author: Napton, Judge,

text:
    Hayden, Defendant in Error, v. Stewart et al., Plaintiffs in Error.
    1. Where, in an action of ejectment, the person from or through whom the defendant claims title to the premises has, on motion of the defendant, been made a co-defendant, the plaintiff is not entitled to dismiss the suit as to such co-defendant.
    2. Under the practice act of 1849 an equitable defence might he made to an action of ejectment.

      Error to Dade Circuit Court.

    This was an action in the nature of an action of ejectment to recover possession of certain premises in the county of Polk. The action was commenced in the year 1852, in the Polk circuit court. On motion of Stewart, the original defendant, one Toler, through whom he claimed title, was made a co-defendant. Toler and Stewart filed a joint answer (which was verified by the affidavit of Toler alone,) putting in issue the allegations of the petition, and setting up that a certain mortgage and lease executed by Toler, through which plaintiff claimed a right to the possession of the premises in controversy, was obtained from said Toler by fraud on the part of plaintiff. The court, on motion, struck out this equitable defence. The cause was then taken by change of venue to the Dade circuit court, which reinstated that portion of the answer stricken out. On motion of the plain-taiff, the court vacated the order of the Polk circuit court substituting Toler as co-defendant, and permitted plaintiff to dismiss the case as to Toler. The court refused to permit Stewart to file a separate answer, and gave judgment against him, disregarding the joint answer that had been put in by Toler and Stewart.

      F. P. Wright, for plaintiffs in error.
    I. The circuit court of Polk erred in striking out that part of the answer which set up fraud and which constituted an equitable defence. (See Tibeau v. Tibeau, 19 Mo. 98.) The circuit court of Dade county erred in setting aside the order of the Polk circuit court making Toler a co-defendant; also in striking out the answer of Stewart, and also in rendering judgment for the want of an answer after the same was stricken out. The affidavit of his co-defendant was sufficient. (Huntington v. House, 22 Mo. 365.) By leave of a previous court the answer had been further verified by Stewart’s attorney. Stewart should have been permitted to file a new answer instanter, as he requested.

      Gardenhire, for defendant in error.
   Napton, Judge,

delivered the opinion of the court.

No opinion of the merits of this case can be drawn from the record, as it appears to have been determined upon points entirely technical. After Toler was admitted as a co-defendant and the joint answer of the two defendants was filed, all the subsequent proceedings consisted of motions to strike out or to reinstate the answer, or to file a new one. The result was, after a varied course on these motions arising from a difference of opinion in several judges before whom the case accidentally came for trial, that the plaintiff dismissed-as to Toler, took a judgment by default against Stewart, his answer having been stricken out or not being regarded as his answer because not sworn to by him, and a general judgment finally given for the plaintiff.

The plaintiff had no right to dismiss as to Toler after Toler had been admitted as a co-defendant by the court. Such a practice would enable a tenant to let his landlord’s possession pass oyer to a stranger, when the landlord, if permitted to be heard, could make a full defence.

It is not to be inferred from the record that it was the intention of the court to pass upon the sufficiency of the answer, since the plaintiff got rid of the answer, so far as Toler was concerned, by dismissing. It may be well enough, however, to state our opinion that the answer was a legitimate one. The plaintiff’s title was derived solely from a mortgage executed by Toler, and the answer substantially averred that this mortgage was obtained by false and fraudulent pre-tences, and was therefore void; or, if it was honestly procured at the time, it had at all events been paid off. In either event, it is clear that the plaintiff had no title, and it can not be doubted that, since the pi-actice act of 1849, an equitable defence may be made to an actioix which before that statute would have been called an action of ejectment.

The fact that Toler had sold his interest to Stewart did not affect the question to be tried. The plaintiff in ejectment can only recover upon the strength of his own title, and if the mortgage had been extinguished, as asserted in the answer, or was fraudulently obtained and therefore void, it was not material how matters stood between Toler and Stewart. The fifth section of an act concerning ejectment authorizes the court to allow the person through whom the defendant claims title to be made a co-defendant.

The judgment will be reversed and the cause remanded.


text:
    Simpson et al., Defendants in Error, v. Simpson et al., Plaintiffs in Error.
    1. Every person who shall sign a testator’s name to a will by his direction must subscribe his own name as a witness and state that he subscribed the testator’s name at his request; if he does not so state, the will is void.

      Error to Carroll Circuit Court.

    This was a proceeding instituted to contest tlie validity of tlie will of one John Simpson. Said will was admitted to probate in the year 1853.
    The testimonium clause of the alleged will, together with the attestation thereof, are as follows : “ In witness whereof I have hereunto affixed my signature and seal this 12th day of July, in the year of our Lord 1852. John jxj Simpson. Signed and sealed in the presence of the undersigned, who were requested to witness the same by John Simpson on this the 12th day of July, 1852. Harden Eodgers, Dudley Thomas, subscribing witnesses.”
    The court set aside the will and declared it null and void.

      Troxell, for plaintiffs in error.
    I. The attestation was good under the fourth section of the act of 1845. The signing of the testator’s full name to said instrument by his direction did not, under the circumstances of this case, render it necessary to have the same attested according to the requisitions of the fifth section of the act. The act of Simpson in publishing said instrument after his mark and name had been put thereto was sufficient to constitute said instrument his will without any regard to the name written thereto. (19 Mo. 609; 1 Jarm. on Wills, 118 ; E. C. 1845, p. 1079, § 4, 5.)

      E. B. Ewing, for defendants in error.
    I. The attesting witness failed to state that he subscribed the testator’s name at his request. (E. C. 1845, p. 1097 ; McGee v. Porter, 14 Mo. 613 ; St. Louis Hospital Association v. Williams’ Adm’r, 19 Mo. 611; Northcutt v. North-cutt, 20 Mo. 268.)
   Napton, Judge,

delivered the opinion of the court.

This case presents the same point decided by this court in McGee and others v. Porter, 14 Mo. 613, and Northcutt v. Northcutt et al., 20 Mo. 268. It will be observed that in the recent revision, tlie fifth section of the act concerning wills, which gave rise to the question decided in these cases, is omitted, and the same question will not arise under the new code. Upon a re-examination of the subject, the court have not been able to arrive at any different construction of the old statute than the one heretofore adopted in cases referred to and others. The judgment of the circuit court is therefore affirmed.


text:
    Vaughn, Respondent, v. Locke, Appellant.
    1. Where a landlord seeks, under the act concerning landlords and tenants (B. C. 1865, p. 1016-17), to recover possession of the demised premises, the statement filed by him before the justice of the peace must set forth the amount of rent actually due to such landlord, and that the same has been demanded from the tenant.
    2. Where one purchasing the demised premises of the landlord seeks to recover possession of them under the 38th section of said act, his statement of the amount of rent due and demanded should embrace only that which is due to himself, and not that which is due to his vendor.

      Appeal from Buchanan Court of Common Pleas.

    This was an action under the landlord and tenant act to recover possession of certain lots in the city of St. Joseph. The statement filed with the justice of the peace is substantially as follows: That on the 7th of August, 1856, one G. W. Goode, being then the owner of certain lots and buildings in the city of St. Joseph, rented the same to defendant for one year at the yearly rent of ninety dollars ; that on the 20th of April, 1857, Goode conveyed said premises to plaintiff, of which fact defendant had due notice ; that defendant accepted plaintiff as his landlord and promised to pay plaintiff the rent for said premises ; that defendant is still in the occupation and possession of said premises, and has so occupied the same after the expiration of said year without any new contract, thus becoming by operation of law a tenant of plaintiff for one year from August 7, 1857, upon the same terms and conditions as the preceding year; that there is now due from defendant, as rent for said premises, the sum of $112.50 ; that the same has been demanded of defendant, but to pay said amount, or any part thereof, defendant has wholly failed and refused. Plaintiff therefore prays that he recover possession of said lots, Ac., in accordance with the statutes in such case made and provided.
    This statement was filed with the justice of the peace January 16, 1858. The following account accompanied the statement or complaint: “ P. B. Locke to Alfred J. Yaughn, jr., Dr. Jan. 8, 1858. For rent of lots 1, 2, 8, 4, 5 and 6, in Block 44, ‘ Robidoux Addition,’ from August 7, 1856, to November 7, 1857 —15 months — at $90 per annum— $112.50.”
    The justice awarded restitution of the premises to the plaintiff. On appeal, the Buchanan court of common pleas rendered judgment in favor of plaintiff.

      Ryland, Edwards, Ewing and Locke, for appellant.
    The complaint was not sufficient to warrant the finding by the-court for the plaintiff. (1 How. 211; 2 Oomst. 141; 7 East, 363 ; R. C. 1855, p. 1016, 1018, § 35 ; Evans v. Miller, 25 Mo. 175 ; Ridgley v. Stillwell, 25 Mo. 570.)
   Napton, Judge,

delivered the opinion of the court.

This proceeding was commenced under certain provisions introduced into the recent revision of the law concerning landlords and tenants. These provisions will be found at pages 1016, 1017 and 1018 of the revised code of 1855, including sections numbered from 32 to 40. The first six sections are transcribed from a local act, found in the appendix of the revised code of 1845, applicable only to St. Louis county, and the three last sections are copied from the act of 1849, which was amendatory of the first mentioned law.

The sections relative to purchasers of leased property are ambiguous in phraseology and make no provision for an apportionment of the rent when a sale is made in the intermediate time between the two periods when the rent becomes due. At the common law, as rent follows the reversion or ownership of the' land, no apportionment would be made, but the monthly, quarterly or annual rent would follow the land and belong to the owner at the time it accrues. But it is not mentioned in this case how this question is determined. Two quarters’ rent were due to Goode (the original lessor) before the purchase was made by the plaintiff, and would no more pass with the land than any other personal claim of the lessor against the lessee. It is not to be inferred from the language of the 38th section that in extending to a purchaser of rented property the remedies previously given to the original lessor for getting possession of the rented premises, it was intended that the statement required of the amount of rent due should embrace not only what was due to the party complaining, but to his assignor or vendor. It will be observed that no judgment is given for the rent, but merely for the possession. The exact amount of rent due is required to be stated, not because that will affect the judgment either way, but because the tenant is permitted, upon a demand of the sum actually due him, to avoid the suit entirely by paying the demand, and may also, after the suit is brought and at the hearing before the justice, come forward and pay up the rent and costs, and still retain possession of the premises. In this view of the statute, it is plain how important it is that the plaintiff should state the amount really due, for the amount stated must be the amount previously demanded; and when a greater amount has been demanded than is really due, the tenant can in no way avoid the suit and its costs without paying the sum thus claimed. If the construction of the circuit court be sustained, then, if upon trial the plaintiff is entitled to possession, however much the sum demanded may vary from the sum found to be actually due, the tenant is deprived of his privilege of paying up the demand before suit. This was not the intention of the act, and it is not a compliance with its provisions to demand a larger sum than is actually due.

Judgment reversed.

The other judges concur.


text:
    Bain & Wyatt, Plaintiffs in Error, v. Chrisman & Porter, Defendants in Error.
    1. Every execution must he founded on a legal judgment.
    2. Where a justice of the peace, in the case of separate suits hy different parties against the same person, improperly renders a joint judgment in favor of the two separate plaintiffs, and certifies the same as a single judgment to the circuit court, any execution or other proceeding instituted thereon should be quashed and set aside.
    3. To entitle a garnishee to indemnification for expenses incurred by him, it is not necessary that he should appear and answer in the garnishment proceeding.

      Error to Moniteau Circuit Court.

    The facts of this case would appear to be substantially as follows: Jacob Bain and J. L. Wyatt instituted separate attachment suits before a justice of the 'peace against one Par-mer. One Chrisman was summoned as garnishee in said suits, and judgments were rendered against him. These judgments the justice seems to have consolidated into one judgment in favor of Bain and Wyatt. He certified the same to the circuit court as a joint judgment against Chrisman in favor of Bain and Wyatt. An execution issued from the office of the clerk of the circuit court against said Chrisman. One Porter was summoned as garnishee. Chrisman and Porter moved the court, separately and jointly, to quash the execution, and to dismiss the garnishment and attachment of Porter. Porter also prayed to be allowed reasonable attorney’s fees, &c. The court sustained the motions and rendered judgment against Bain and Wyatt in favor of Porter for ten dollars for his costs and attorney’s fees.

      White, for plaintiffs in error.
    I. The court erred in sustaining the motion of Chrisman to quash the execution. He was not prejudiced by the justice’s entering a single judgment in favor of Bain and Wyatt. (R. C. 1855, p. 162, § 18; Rutherford v. Wimer, 3 Mo. 11; Franse v. Owens, 25 Mo. 334 ; 10 Mo. 304.) It was not for Porter to come in as a debtor of Chrisman and insist that the proceedings between the plaintiffs and Chris-man were irregular. A garnishee can only answer when brought into court. The court erred in allowing an attorney’s fee when the garnishee did not answer.

      Douglass & Hayden, for defendants in error.
   Scott, Judge,

delivered the opinion of the court.

It would seem to be a vain undertaking to attempt to support such proceedings as are contained in the record before us. Two plaintiffs by separate actions — there being no privity whatever between them — obtained separate judgments against the same garnishee. Afterwards a transcript of these judgments is filed in the clerk’s office of the circuit court. This transcript is made out in. such way as makes it appear that the two separate plaintiffs had obtained a joint judgment in their joint names against the garnishee. This transcript is made the foundation of an execution against the garnishee, on whose motion it was quashed. Nothing can more clearly vindicate the action of the court below in setting the execution aside than the bare statement of the case. Every execution must be founded on a legal judgment, with which it must correspond. As the law provided no remedy against a false transcript filed in the clerk’s office of the circuit court, the only course open to the defendant was a motion to set aside the execution, a power inherent in all courts of record. It is a little surpi’ising that the plaintiffs, when they discovered the gross irregularity of their proceedings, did not arrest them and have the proper transcripts filed on which regular executions might have been issued. The court, under the circumstances, had no authority to make an amendment; and had one been ordered, it could not have been made to correspond with the execution, so that the plaintiffs were necessarily denied the benefit of their irregular proceedings. As the execution was properly quashed at the instance of the garnishee against whom it was issued, it is unnecessary to inquire' whether Porter, the garnishee, summoned under the writ, could make such a motion.

.The sixth section of the law concerning executions provides that the service of a garnishment under an execution, and the subsequent proceedings against and in behalf of the garnishee, shall be the same as in the case of garnishment under an attachment. The 74th section of the act concerning attachments provides, that, in the event the plaintiff shall fail to recover judgment against the garnishee, the costs shall be adjudged against him, and that the court shall render judgment in favor of the garnishee for a sum sufficient to indemnify him for his time and expenses and reasonable attorney’s fees in attending and answering and defending in subsequent proceedings as garnishee. This will certainly be taken distributively. The garnishee will not be required to attend, answer and defend before he entitles himself to the benefit of this section. If time is lost and expenses incurred in consequence of the summons, it is reasonable that the garnishee should be proportionally indemnified, though he may not have answered, or although the prior termination of the cause may have rendered an answer unnecessary.

Affirmed;

the other judges concur.


text:
    Byrne, Appellant, v. Steamboat St. Mary, Respondent.

    1. Where a complaint filed against a steamboat to enfore a lien for wages states “that thirty days have not elapsed since the demand for services accrued to him,” and is accompanied by an affidavit to the effect that the demand sought to be enforced “ is the only demand that he [complainant] has against said steamboat;” such complaint is sufficient.

      Appeal from Buchanan Court of Common Pleas.

    This was an action to enforce against the steamboat St. Mary a lien for the payment of'wages alleged to be due the plaintiff. The complaint against the boat is as follows: “ James Byrne, the plaintiff in the above entitled cause, complains and says that he has a demand against the said steamboat amounting to twenty dollars, for- fourteen days’ services <j>f him, the said James Byrne, on board the said steamboat, on account of S. G-. Cable, the master thereof, in navigating the waters of this state. Steamboat St. Mary, to James Byrne, Dr. To fourteen days’ services as deck hand on said steamboat, from the 6th day of April, 1857, to April 22d, 1857, at the rate of $40 per month. And the said plaintiff says that thirty days have not elapsed since the demand for the services accrued to him as above stated.” The complaint was verified, as follows: “ James Byrne being duly sworn [says] that the matters contained in the foregoing complaint are true, and that this is the only demand that he has against said steamboat. [Signed] James Byrne. Sworn to and subscribed this 22d day of April, 1857. Alfred Christy, J. P.”
    On appeal, the circuit court dismissed the complaint.

      Locke, Edwards and Ewing, for appellant.

      Gardenhire, for respondent.

       This case was decided at the January term, 1858, of the supreme court.

   Napton, Judge,

delivered the opinion of the court.

We have not been able to perceive any objections to the form or substance of the complaint in this case. We have been referred to the 41st section of the act; (1 R. C. 1855, p. 318 ;) but every requirement of that section, as well as of section 29, seems to have been complied with.

Judgment reversed and cause remanded ;

the other judges concurring.


text:
    Smith, Respondent, v. Davis, Appellant.
    1. In a suit for partition commenced by suing out a writ of summons against the defendants upon a petition filed in the proper clerk’s office, the writ of summons should be served upon the minor defendants; it is not necessary, in such cases, to serve such writ upon the guardian of such minor defendants.
    2. A suit for partition is not triable, except by consent of parties, at the term at which the defendant is first bound to appear.

      Appeal from, Ralls Circuit Court.

      Dryden and Allen, for appellant.
    I. The judgment of the circuit court was final and absolute unless reversed on appeal or writ of error. (6 Peters, 729 ; 1 Peters, 340; 2 Peters, 169; 11 Mass. 226.) The parties to the partition can not have the judgment set aside on this motion. The judgment was rendered at the instance of the plaintiff. The defendants were duly and properly represented by their guardian. (18 Mo. 461; 8 Mo. 257.) The judgment or order of sale and sale itself were all duly and properly made. The court had. full power to appoint a guardian! ad litem, although the defendants had a general guardian. The act of the guardian bound them. (18 Mo. 461; R. C. 1855, p. 1279 ; 11 Mo. 243.)

      Carr, for respondent.
    I. The order of sale was irregularly made at the return term. (Doan v. Holly, 26 Mo. 186 ; 10 Mo. 454; 6 Mo. 388; 20 Mo. 432; 26 Mo. 505 ; 3 Black. Comm. 404.) There being an irregularity, the court was authorized to set aside the sale. (3 Wend. 478; 4 Wend. 217 ; 10 Wend. 568 ; 1 Wend. 71; 6 Wend. 526 ; 3 Duer, 652.) It was an irregularity not to make the general guardian and curator of the minors a party to the suit.
   Richardson, Judge,

delivered the opinion of the court.

On the 6th of November, 1855, Sarah A. Smith commenced a suit for the partition of a. quarter section of land against John W. and Enoch A. Smith, both of whom were minors. The summons was returnable to the following. March term of the court, and was personally served on the defendants in January. At the return term, in March, 1856, a guardian ad litem was appointed for the infant defendants, who was duly qualified, and filed an answer putting in issue the allegations of the petition; and, the cause being submitted to the court upon the petition, answer and proofs, it was found by the court that the plaintiff and defendants owned the land as tenants in common, in equal parts, and, it appearing that the land could not be divided without great prejudice to the owners, a final judgment was rendered, which directed that the premises should be sold by the sheriff. At the next term in August, the land was sold by the sheriff in the manner and on the terms directed by the judgment, and was purchased by the defendant. One year after the sale, the plaintiff and the said infants, by their guardian and curator, united in a motion against the purchaser asking to have the sale set aside, and the motion coming on to be heard was sustained. It was admitted that the minors had a regular guardian and curator at the time of the commencement of the suit. The order of the circuit court setting aside the sale is defended on the ground that the judgment is irregular for two reasons: first, because the guardian of the infants was not made a party to the suit, nor served with notice; and next, because final judgment was rendered at the return term of the summons.

This suit was begun before the revised statutes of 1855 took effect, but, as all the provisions of the partition acts of 1845 and the amendment thereto of 1847, that affect this case, are substantially incorporated into the present law, the plaintiff’s objections will be considered in reference to the provisions of the existing statutes. Suits for partition may be commenced either by serving a notice with a copy of the petition as prescribed by the sixth section of the partition law, or by filing the petition in the office of the clerk of the proper county and sueing out thereon a writ of summons against the defendants as directed by the eighth section. If the first mode is adopted, a copy of the petition, “ with notice that the same will be presented to the court on some certain day in the term or as soon thereafter as a hearing can be had, shall be served at least twenty days previous to such term on all parties interested in the lands or tenements who shall not have joined in the petition, and on the guardians of such as are minors, or of unsound mind.” (Sec. 6.) But if the other mode is adopted, the writ of summons only goes against the defendants, which shall be in manner and form, and be served and returned in like time and manner, as writs in ordinary civil actions.” (Sec. 8.) Turning to the third article of practice in civil cases (p. 1219) which regulates proceedings by and against infants, it will be observed that an infant is sued like any other person, and that his infancy is not noticed, nor is his guardian, until the process is served upon, liim, and then the suit is not prosecuted any farther until a guardian is appointed.” (Sec. 8.) The appointment (sec. 9) must be made by the court upon the request of the defendant before any answer is filed; but (sec. 10) if the infant defendant neglects, for one day after the first day of the term at which he is bound to appear, to procure the appointment of a guardian, the court shall appoint some competent person to act in that capacity. If then the proceeding is by notice under the sixth section, and the infant is a defendant, service thereof must be made on the guardian; but if by summons under the eighth section, the guardian is not noticed. If the infant has no guardian, provision is made in the 52d section for the appointment of one, in which it is declared, “ It shall be lawful for said court, for any of the purposes intended by this act, and before or after any proceeding by virtue thereof, to appoint a guardian for any minor, whether such minor resides in or out of this state ; and such guardian, for all the purposes of this act, shall have the same power as any general guardian.” There is of course no necessity for the exercise of the authority conferred upon the court by this section, if the infant has a guardian and the proceeding is by notice; and the court is not required, in the appointment of a guardian to defend a suit commenced in the ordinary way, to select the general guardian, if there be one ; though it is generally better for the interest of the infant that it should be done, for it is reasonable to suppose that a general guardian will feel more concern for his ward than a stranger would.

By the 12th section, all pleadings and proceedings under the act, except as otherwise provided, shall be had as in ordinary civil actions, and it seems that a suit for partition is not triable by law at an earlier day than ordinary civil actions. Suits founded on bonds, bills or notes for the-direct payment of money or property are triable at the term! at which the defendant is bound to appear, but every other suit is not triable, except by consent of the parties, until the-term thereafter; (R. C. 1855, p. 1259, sec. 5;) and this. suit was not for trial at the return term except by consent of the parties. The guardian ad litem had authority to consent for his wards that the case should be tried at the first term; (R. C. 1855, p. 1119, sec. 51; Hite v. Thompson, 18 Mo. 461;) and we think it appears from the record that the submission was by the consent of the parties. The suggestion by the plaintiff’s counsel that the defendants were minors, the appointment of the guardian, his acceptance and appearance, the filing of his answer, the submission of the cause to the court, and the judgment, are all in one entry and seem to hare been contemporaneous ; and the fair inference from the entry is that the guardian was present in court, and that on the filing of his answer, by consent of parties, the cause was submitted and tried.

Judge Napton concurring, the judgment setting aside the order of sale will be reversed. Judge Scott being indisposed did not sit.


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    Thornton et al., Plaintiffs in Error, v. Thornton, Defendant in Error.
    1. Infants may be made parties plaintiff in statutory proceedings for partition. (Johnson v. Noble, 24 Mo. 252, overruled.)
    2. Infants can not appear by attorney; they may appear by guardian.
    3. An interlocutory judgment in an action for partition, ascertaining the rights of the parties and appointing commissioners, &c., can not regularly be rendered, without the consent of the defendant, at the first term at which he is bound to appear.

      Error to Washington Circuit Court.

      Frissell, for plaintiffs in error.
    I. A sale in an entire thing. If void or voidable in part, it is void or voidable as a whole. The judgment is irregular and void as to the infants and Brunt and wife, for the reason that they were not in fact parties before the court. The judgment then is void, and the sale under it a nullity. (11 N. H. 299; Hall v. Williams, 6 Pick. 247; 12 Johns. 434; 5 Wend. 161.)

      T. C. Johnson, for defendant in error.
    I. The circuit court could not set aside the sale on a mere motion, except for causes originating after the judgment, such as the misconduct of the sheriff, or unlawful combination of purchasers. Even then a purchaser would not be affected unless he was cognizant of the official misconduct or participated in the combination. (Neal v. Stone, 20 Mo. 294.) The purchasers are not affected by the motion unless they had notice of it. The record does not show such a notice. (16 Mo. 173.) The want of authority in the attorney to use Brunk’s name and the infancy of -five of the petitioners can not be urged against the sale. At most they would make the judgment erroneous. The sale would still be good¿ The court therefore should have overruled the motion to set aside the sale. The judgment is, however, good and valid and ought not to be disturbed. The suggestion of Brunk by affidavit that his name was signed to the petition without his knowledge or consent, is not sufficient to authorize the court to disturb the judgment. There is no irregularity in the joinder of the infants as parties plaintiff.
   Richardson, Judge,

delivered the opinion of the court.

This was a proceeding for partition of real estate between the widow and representatives of John Thornton,, deceased, commenced in December,.1854. The petition begins — “To the honorable circuit court of Washington county: Your petitioners, John Thornton, Jackson Thornton, John Jennings and Catherine his wife, John Brunk and Mary his wife, Mary Thornton, Thomas Hopson, Catharine Hopson his wife, and James Thornton, Elizabeth • Thornton, Cynthia Thornton, Margaret Thornton and Daniel Thornton, by their guardian — the five last named being minors, under twenty-one years of age — say that they are the owners in common and in fee with Joseph Thornton, who is absent in California and does not join in the petition,” &c.; but the name of the guardian of the infants is nowhere stated, and it does not appear that they had any. The petition purports to be signed by the adult parties, but it is not signed by the attorney, nor by the infants, nor by their guardian, nor any other person for them. The affidavit is made by Mr. Perryman, as attorney for the petitioners, and there is endorsed on the petition a memorandum signed by him that he consented to act as next friend for the minors ; but it nowhere appears that his appointment as such was ever requested, or that he was ever - appointed by any court or officer. The record states that an order of publication, which had been previously made, was duly proved, and at the April term of the court, 1855 — which we suppose was the first term after the petition had been filed — there was a judgment ascertaining the rights of the parties and appointing commissioners. At the following October term, the Commissioners made a report which resulted in an order of sale, and at the April term, 1856, the land was sold by the sheriff, pursuant to the order, for one-tenth of the purchase money in hand and the residue on a credit of twelve months; and at the ensuing term in October, Brunk, one of the parties, whose name appears to the petition, filed his motion, supported by his affidavit, to set aside the sale made at the previous term, because his name had been signed to the petition without his knowledge or consent, and he had no notice of the proceedings, and also because the infants, who are represented as appearing by guardian, had no guardian in fact. The court set aside the sale as to the interest of Brunk and his wife and the minors, and overruled the motion as to the other parties.

It is not shown that the purchasers had notice of the motion to set aside the sale; but notice to them was not necessary, as the irregularities in the proceedings were such as affected the validity of the judgment; and as their title would have been insecure, perhaps, even in a collateral proceeding, it was to their interest, before the purchase money was paid, that the sale, as to all the parties, should be set aside.

We think it is no objection that the infants were joined as plaintiffs; but they could not appear by attorney, and they did not appear by guardian or nest friend. The petition is not signed by them, or by any person in any capacity whatever for them, and they only appear as parties to the proceedings by the caption to the petition. Infants can only sue by guardian or next friend; and if these infants had no guardian, one could have .been appointed for them before the commencement of the suit, under the ample provisions of the statute for that purpose; (R. C. 1845, tit. Partition, sec. 54;) and the endorsement by Mr. Perryman on the petition that he consented to act as their next friend amounted to nothing.

It was also irregular to try the case at the first term of the court at which the defendant was bound to appear without his consent, and as he never appeared, it can not be presumed that he consented. (Smith v. Davis, ante, p. 298.)

It is stated in the brief of the counsel for the purchasers that the main ground on which the court acted in setting aside the sale was, that the infants could not unite as plaintiffs in a proceeding for partition, and his argument is chiefly directed to that view of the subject. If that was the only objection, the judgment and sale under it would be valid. The provisions of the partition law of 1845 that affect this question have been in force for more than thirty, years, and it is believed that the practice has generally prevailed, according to circumstances, in several of the cicuits, not only to join infants by their guardians as petitioners, but to unite as petitioners all the parties in interest. Many of the oldest and most experienced members of the bar have pursued this course, and have given a practical and cotemporaneous construction to the statute, so that the practice has worked itself into the records and judgments of the courts, which have become the muniments of title on which repose the security of the homes and fortunes of a large portion of the community. We recognize the propriety of maintaining the stability of the decisions of this court, especially where rights liave been acquired on the faith of them; and though we do not concur in the reasoning or conclusion of the opinion in the cas.e of Johnson and Noble, 24 Mo. 252, we would not be inclined to disturb it if we did not believe that it has shaken confidence in the titles to a vast amount of property acquired in good faith, and under proceedings conducted in the usual way.

The first section of the partition act of 1845 provides that when any lands, tenements or hereditaments shall be held in joint tenancy, tenancy in common, or coparcenary, it shall be lawful for any one or more of the parties interested therein to present a petition to the circuit court of the proper county, and, though the fifth section directs that a copy of the petition and notice shall be served on all parties interested who shall not have joined in the petition, and on the guardian of such as are minors or of unsound mind, it does not say that infants by their guardians may not be joined. Indeed it would- require language not susceptible of a doubtful construction to warrant such a conclusion, since by the general law infants in all other civil cases can sue as plaintiffs by their guardian or next friend. The scope of the act shows it was intended that infants should be represented by their guardians either as plaintiffs or as defendants ; hence the 54th section provides that it shall be lawful for the circuit court, for any of the purposes of the act, before or after any proceedings by virtue thereof, to appoint a guardian for any minor, and such guardian, for all the purposes of the act, shall have the same power as any general guardian. It seems that proceedings may be commenced against an infant before the appointment of a guardian; hence the power to appoint after proceedings; but if an infant can only occupy the position of defendant, the power to appoint a guardian before proceedings is entirely useless, and full effect can only be given to the statute by the construction that the power to appoint beforehand is to enable an infant to join in the petition. The statute suggests the natural order of events; if the infant is to be a plaintiff, he must appear by guardian; and if be lias none, one must be appointed before be begins the suit; but if be is a defendant, a guardian may be appointed after the proceeding is begun.

The policy is very obvious that requires the guardian to have notice that proceedings are on foot which affect the land of his ward; but how is it material whether he occupies the position on the record as plaintiff or as defendant ? A guardian appointed under the authority of the 54th section has the same power as a general guardian, and the 53d section declares that guardians of minors appointed according to law are authorized in behalf of their respective wards to do and perform any matter or thing respecting the division of any land as directed by the act, which shall be binding on the ward, and deemed valid to every purpose as if the same had been done by such ward after his disabilities are removed. This comprehensive language, without the aid of any other section, seems sufficient to clothe the guardian with power to initiate proceedings for partition on behalf of his ward.

It is the duty of every minister of the law to watch with jealous care the rights of infants; but human wisdom has not yet succeeded in providing a shield that will protect the weak and innocent against the strong and the crafty, and it is not perceived how infants are more exposed to robbery or treachery when they are plaintiffs, than when they are defendants. If an infant has no other means of support but an undivided interest in real estate, it is often of great importance to him to have the power of forcing a partition and of securing the separate enjoyment of his share ; for, whilst it is held in common with an obstinate co-tenant, it would not be productive in yielding a ground rent, or in any other manner; and to deny him the right to have a partition would drive him to want or to an application to the county court for the sale of his interest, and in that way produce the very result dictated by the cupidity of his tenant in common.

The doctrine of Johnson and Noble can do no good in preventing for the future any of the mischief apprehended in the opinion, because the general assembly, in the next month after the opinion was delivered, not impressed with the sense of danger entertained by the court in allowing infants to be plaintiffs in partition, enacted that “ when any minor is interested in any real estate in which there are other parties holding undivided interests, it shall be lawful for the guardian or curator of such minor to file a petition for the division and partition of such real estate.” (Sess. Acts, 1856-7, p. 83.) We think that this legislation was unnecessary, and that it is not to be inferred from it that the right it expressly gives did not exist before, but the objeet was to put at rest any doubt on the subject.

The views we have taken of this case renders it unnecessary to notice the objection of Brunk that the appearance for him was without his authority. The judgment will be reversed and the cause remanded. The circuit court will see that the instalment of the purchase money is refunded, and will set aside the sale and judgment, with leave to the plaintiffs to amend the petition.

All the judges concur in the judgment here given, but Judge Scott adheres to the opinion in Johnson v. Noble.


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    Lowe, Appellant, v. Sinklear, Appellant.
    1. Where there is a special contract to do certain work and the contractor fails to perform the -work according to the terms of the contract, no recovery can he had by him on the contract.
    2. If, however, services are rendered by him which are of value to the person with whom he contracts and are accepted by such person, an obligation is thereby created to pay the reasonable value of such services, not exceeding the contract price, taking into consideration and making allowance for any damage resulting from the breach of the contract.
    3. If a minor enter into a special contract to do certain work, he may avoid such contract and may recover a reasonable compensation for the work done, the damage resulting from the avoiding of the contract being taken into consideration and allowed.

      Appeal from Ralls Circuit Court.

    This was an action before a justice of the peace to recover five dollars and fifty cents for three weeks and four days’ board furnished by plaintiff to defendant. The defendant admitted the demand of the plaintiff, but set up an off-set (exceeding, after allowing credits, the demand of plaintiff in the sum of eighty-one dollars and sixty-five cents) for work and labor "done and performed by him in clearing for plaintiff eleven acres of new ground at the rate of eight dollars per acre. At the trial on appeal in the circuit court, it appeared in evidence that the plaintiff Lowe employed one Weaver to clear about fourteen acres of land at the price of eight dollars per acre, to be paid after the clearing was completed. Weaver employed Sinklear to assist him in the clearing. Weaver and Sinklear cleared a portion of the land, when Weaver sold out the contract to Sinklear. The evidence tended to show that Lowe agreed that Sinklear should be substituted in the place of- Weaver. Sinklear cleared a large portion of the land, which was immediately put in cultivation by Lowe. Whilst engaged in the performance of this contract Sinklear boarded for sevex-al weeks at the house of plaintiff Lowe. Sinklear did not complete the clearing according to the contract. Sinklear, at the time of the performance of the work embraced in his set-off, was under the .age of twenty-one years. The court, at the instance of the plaintiff, instructed the jury as follows : “ 1. If the jury find from the evidence that Mr. Weaver agreed with plaintiff to clear for plaintiff all the land in a certain field or enclosure, and that plaintiff agreed with said Weaver to pay him for said clearing at the rate of eight dollars per acre, and that it was agreed between plaintiff and Weaver that plaintiff was not to pay for said clearing until the whole was completed ; and if the jury further find that said Weaver transferred his interest in said contract to the defendant, and that defendant did the work mentioned in his set-off under said contract and transfer, then the defendant can not recover for said work if he failed to clear all.the land in said field.” Certain instructions asked by defendant, with respect to the effect of the infancy of defendant, were refused.
    The jury found for the plaintiff.

      J. B. Henderson, for appellant.
    I. The defendant was entitled to recover what his services were reasonably worth. (Downing v. Burke, 23 Mo. 228 ; Lee v. Ashbrook, 14 Mo. 378; Britton v. Turner, 6 N. H. 481.) The defendant, being an infant, was not bound by the terms of the special agreement. (2 Pick. 332; 11 Term. 273 ; 19 Pick. 572 ; 17 Maine, 38 ; 23 Pick. 492.)

      Seaford, for respondent.
    I. The instruction given was correct. (23 Mo. 265, 228.) The instructions asked by defendant were properly refused. The plaintiff made no contract with Sinklear. This contract was with Weaver. If Weaver could not recover, Sinklear could not. Sinklear did not repudiate the contract. He demands pay for eleven acres cleared by him at the contract price. His infancy can avail him nothing in this case. If the plaintiff is responsible to any one, it is to Weaver.
   Richardson, Judge,

delivered the opinion of the court.

Assuming that the defendant was substituted in Weaver’s place in the contract for clearing land, the case must be considered in two aspects: first, as to the defendant’s right to recover on his set-off for any portion of the work that was completed before the substitution; and secondly, for the work subsequently performed. As to the work done before the assignment of the contract, the defendant seeks to re cover as the representative of Weaver, and for that much he can not of course recover, unless he makes a case that would authorize Weaver to maintain an action if he were suing. If Weaver failed to perform the work according to the stipulations.of his agreement, he could not recover in an action on the special contract; but if services were rendered by him which were of value to the plaintiff and were accepted by him, he would be liable to pay the actual value of the work performed, not exceeding the contract price, after deducting for any damage which had resulted from a breach of the contract. (Lee v. Ashbrook, 14 Mo. 378; Downey v. Burke, 23 Mo. 228.) It has however been said that this doctrine does not apply to the case of a servant hiring himself for a certain period, as for an entire year, at a fixed sum for the year.

From the time of the agreement between the parties that introduced the defendant, the contract became one between the plaintiff and defendant, and, being executed for personal services and not for necessaries, the defendant, if he was a minor, had the right to avoid the special agreement and to recover a reasonable compensation for the work which he did after allowing for any injury the plaintiff sustained by the avoiding of the contract. (Chitty on Cont. 579, note; Medbury v. Watraus, 7 Hill, 110; Moses v. Stevens, 2 Pick. 332.) The case of McCoy v. Huffman, 8 Cow. 84—on the authority of which the case of Weeks v. Leighton, 5 N. H. 343, and Owen v. Black, 4 Black. 338, were decided — is expressly overruled in 7 Hill, 110.

The instruction'which the court gave was erroneous, and the judgment will be reversed and the cause remanded;

the other judges concurring.


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    Ellis et al., Appellants, v. Kreutzinger, et al., Respondents.
    1. The deposit of a policy of insurance with a creditor of the assured as a security for the debt gives such creditor a lien upon the proceeds of the policy, a lien binding upon the assured, the insurer and upon all who, with’ notice of such lien, take an interest in the policy from the assured.
    2. The clause in a policy which prohibits an assignment of the policy without the consent in writing of the insurance company, does not apply to a deposit of the policy by way of pledge.

      Appeal from, St. Louis Court of Common Pleas.

    One Kreutzinger was indebted to the firm of Ellis & Ca-vender, as a security for which said firm held a mortgage on his stock of goods. Kreutzinger also delivered to said firm, as a security for said indebtedness, a policy of insurance on said stock of goods, executed in his favor by the St. Louis Mutual Fire and Marine Insurance Company of St. Louis. Said Kreutzinger was also indebted to the firm of Douglass, Gazzam & Co. and to that of Fallenstein & Gauss. The goods were lost by fire. After the loss, an assignment of the policy was made upon the books of the company to one Meyer in trust for the two firms last named. This assignment, it is contended by plaintiffs, was made with notice, on the part of the company, the trustee, and the cestuis que trust, of the rights of plaintiffs and in fraud of those rights. The company paid the loss to Meyer, who appropriated the sum received in payment of the debts due the firms of Douglass, Gazzam & Co. and of Fallenstein & Gauss. The plaintiffs pray for judgment against Kreutzinger for the debt due them, and that the other defendants be required to refund and pay over to plaintiffs the sums received by them on the policy.
    The plaintiffs asked and the court refused the following declaration of law: “ If the court is satisfied from the evidence that the defendant Kreutzinger deposited the policy in question with the plaintiffs in pledge for the further security of an existing indebtedness from him to them; that at the time of such deposit an indebtedness existed and still subsists unpaid from said Kreutzinger to the plaintiffs to the amount claimed by them, and that said defendant Meyer, as trustee of said firms of Douglass, Gazzam & Co. and Fallen-stein & Gauss, at the time of the payment of the proceeds of said policy to him as such trustee, had notice of such pledge, then the plaintiffs are entitled to recover of said firms the amount of such indebtedness, not exceeding the amounts received by them, to be contributed and refunded by said firms in the proportion of the amounts received by them respectively out of the proceeds of said policy; and, further, if said Meyer, at the time of the payment of said proceeds to him as aforesaid, had knowledge that the said policy was in some way charged or affected in the hands of the plaintiffs, that is constructive notice of all the facts and instruments to a knowledge of which he might have been led by an inquiry after such charge or circumstances affecting the policy.”
    The court gave the following instruction at the instance of defendants : “ If the assignment of the policy of insurance read in evidence was made to Meyer to secure debts due by Kreutzinger to Douglass, Gazzam & Co. and Eallenstein & Gauss, and no notice given to the insurance company or said Meyer of any other assignment of said policy to any other person or persons, and that said Meyer, before the bringing of this suit, paid over the proceeds to the creditors of said Kreutzzinger, then the plaintiffs can not recover.”
    The court found for the defendants.

      N. Holmes, for appellants.
    I. The deposit of a policy of insurance in pledge for the security of a debt gives a lien in equity on the proceeds of the policy as against the assured making the deposit and all persons claiming the fund under him with notice. (1 Phill. Ins. 68 ; 2 Duer on Ins. 61, 57, § 35 ; 10 S. & R. 412; 2 McMul. 237 2 Story on Eq. § 1047,1258, 1250.)
    The clause in the policy which provides that it shall not be assigned without the consent in writing of the insurance company has ■ reference only to an actual assignment of the instrument on a change of property in the subject insured previous to a loss, and is inteded merely for the protection of the company against an alienation of the subject insured. It has no application here. (2 Duer on Ins. § 40 ; Arnold on Ins. 1249; 1 Phill. on Ins. 34, 58.)
    III. There was no assignment of the policy before a loss to Meyer. The assignment to Meyer was an assignment of the proceeds of the policy, all the parties having notice of the prior equity of the plaintiffs. (2 Duer, 65 ; Arnold on Ins. 1249; 1 Phill. on Ins. 39; 8 Hall, 372.) The doctrine of constructive notice applicable was correctly enumerated in the plaintiffs’ instruction. (Jones v. Smith, 1 Hare, 43; 1 Sto. Eq. § 399, 400, 408 ; 3 Sugd. on Vendors, 471.) The instruction given for defendants was erroneous.

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

delivered the opinion of the court.

The authorities are very clear that the deposit of a policy of insurance with a creditor of the assured, as a security, collateral or original, for the debt, gives the creditor a lien on the proceeds of the policy, which is binding upon the underwriters and upon the assured, and upon all those who take an interest from the assured with notice of such lien. (1 Phill. Ins. § 98; 2 Duer, § 36; 10 Serg. & R. 412.)

The clause in this policy, which prohibits an assignment of the policy without the consent in writing of the company, does not apply to a deposit of the policy by way of pledge. The interest of the underwriters can not be affected by any transfer which does not also transfer the title to and a control over the property assured, and therefore such restrictions have not been understood to apply to assignments in which the underwriters can have no interest, and to control which they can have no motive. (2 Duer, § 40.)

The insurance company, in this case, paid up the policy, without calling for its production, to the defendants who claimed to be assignees. It is not necessary to say that the possession of the policy by the plaintiff and the failure of the defendants to produce it, were of themselves notice to the company that it belonged to the plaintiffs, or to some one else ; but it would seem to be clear that these circumstances were sufficient to put the company and the defendants upon inquiry. The evidence was that both the company and the defendants were apprised that the policy was in the hands of the plaintiffs and that they claimed an interest in it. The instruction asked by the plaintiffs should have been given. (10 Serg. & R. 412.)

The judgment is reversed and the cause remanded.

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


text:
    Grand Lodge of Masons, Defendant in Error, v. Knox, Plaintiff in Error.
    1. It is a mixed question of law and fact -whether particular things are fixtures or not; juries should he guided to an intelligent determination of the question by an explanation of the legal meaning of the term.

      Error to Marion Circuit Court.
    This case has heretofore been before the supreme court. (See 20 Mo. 433.) The following is the first instruction given at the instance of the plaintiff: “ 1. Unless the jury find from the evidence that the five presses, or some of them, were fixtures embraced in the sale of the land, and that they were removed by the plaintiff after the bargain was made and before the formal transfer of the property, without the knowledge and against the will of Knox, they will find for the plaintiff the two hundred and fifty dollars claimed with interest.”

      Knox & Kellogg, for plaintiff in error.

      Broadhead, for defendant in error.
   Napton, Judge,

delivered the opinion of the court.

This judgment must be reversed because the first instruction left to the jury to find whether the book-cases were fixtures or not, without giving them any explanation of this term by which they could have been guided to an intelligent determination of the question.

The instructions concerning the bargain and the date of its completion are probably correct in the abstract, but they really appear to have but little to do with the merits of this claim. As the defendant, however, asked counter-instructions upon this point and thereby appeared to have acquiesced in its relevancy and importance, we should not on this ground alone feel authorized to reverse the judgment. Whether the bargain was closed on the 21st of September, 1849, appears to be not material in this controversy, since the letter of that date, however conditional it may have been, actually resulted in a bargain and sale upon the terms specified in the letter; and if the book-cases were fixtures, and were removed without the consent, express or implied, of the defendant, after his examination of the premises, such removal would hardly consist with good faith, although it may have taken place prior to final consummation of the bargain.

There was evidence in this case tending to show that the defendant, on his way to examine the premises which he proposed to buy, was apprised by the agent of the Grand Lodge that they had removed or were about to remove these book-cases to Lexington. If the defendant attached any importance to the book-cases in his contemplated purchase and was unwilling that they should be removed, it would seem natural that he would have made known his objections at that time. It is uncertain from the testimony whether the defendant ever looked into the chapel building at all during the examination of the premises which resulted in his proposition of the 21st of September. If he did and saw the book-cases still there and considered them of importance in his trade, would he not have come to a distinct understanding about this matter, after the communication made to him by Mr. Draper ? If he did not see the book-cases, might not his previous silence, when informed of their removal, be construed as an acquiescence ? These questions were of course for the jury; and, although it is true that they were submitted to the jury which tried this case and decided against the defendant, yet they were so connected with other matters, some of which the jury had no right to decide at all, and others having but little if any bearing on the merits, that we are not at liberty to take this verdict as conclusive upon the point.

If the removal of the book-cases was attended with unnecessary injury to the building, that would be a distinct ground of • damages independent of the defendant’s assent.

The judgment is reversed and the cause remanded ;

Judge Richardson assents. Judge Scott absent.


text:
    Hannibal and St. Joseph Railroad Company v. Morton. Same v. Same.
    1. Where, in proceedings instituted in behalf of the Hannibal and St. Joseph Railroad Company, under its charter, to obtain the condemnation and appropriation 'of land upon which said railroad had been located, it was stated, in the report of the viewers appointed to assess the damages; that before proceeding to examine the damages they took the oath prescribed by the statute, but the oath itself was not set forth; held, it not appearing that any objection was made to the report on this ground, that the recital in the report was sufficient to show that the required oath had been,taken.
    2. The supreme court would not in such case quash the proceedings for the reason that the record thereof does not show affirmatively that the viewers were citizens of the county.
    3. The charter of the company not making any provision for bills of exceptions in such cases, they could not be taken; if taken, they would form no part of the record.
    4. The supreme court could not, in such case, quash the proceeding's on the ground that the damages allowed by the commissioners were inadequate.
    5. Quere, when may writs of certiorari issue from the supreme court, and what is the proper office and function of such writs 1

      Certiorari to Judge of Marion Circuit Court.

    Since the dismissal of the writs of error in these two cases, (see 20 Mo. 70,) the defendants, David and Samuel Morton, petitioned the supreme court to grant writs of certiorari directed to the judge of the Marion circuit court. In obedience to these writs, transcripts of the records in said cases were filed in the office of tbe clerk of the supreme court, on which said defendants made assignments of error.
    The facts, it is deemed, sufficiently appear in the opinion of the court and in the report of the case of Hannibal & St. Joseph Railroad Co. v. Morton, 20 Mo. 70.

      S. T. & A. D. Glover, for S. & D. Morton.
    I. The writ of certiorari is the proper process to bring up an unfinished proceeding in an inferior court of record, or a summary proceeding in such court not according to the course of the common law after judgment, .where there is alleged error. (Redfield on Railways, 469 ; 8 Humph. 145; see 2 Ala. 35; R. M. Charlt. 298 ; 9 Ohio, 148; 8 Greenl. 293 ; 5 Binn. 24; 3 Halst. 122; 1 Gill & Jo. 196 ; 10 Wend. 174; 5 Mass. 423.) The common law writ of certiorari may issue to all inferior tribunals in cases where they exceed their jurisdiction or proceed illegally, and there is no appeal, or other mode of directly reviewing their proceedings. (14 Ills. 383; 13 Ills. 660.) No appeal or writ of error lies here. (20 Mo. 70.)
    II. The proceedings against the Mortons were contrary to the charter of the company, illegal, and ought to be quashed. The proceedings were not commenced until the road was constructed. (See 10 How. 395; Sess. Acts, 1837, p. 250, § 10; Red. on Railw. 114-5; 10 Wend. 167.) The statement of the clerk that the viewers took the required oath is not what the law required. The oath was to be subscribed and kept to be seen. The record should show that the law has beeen complied with. It does not. There was only nine days’ notice of the first assessment of damages. This assessment was therefore a nullity. It was given not by the viewers, but by Joshua Gentry, agent of the company. There was no notice at all touching the last assessment. The order of the clerk entering judgment on the second report was illegal and void. The objections were entered in time, three days after the filing of the report. (See Sess. Acts, 1837, p. 250.) The judgment was in the face of the statute. When objections were filed, the judge was to consider them and then direct the proper judgment to be entered.

      Lamb & Lakenan, for Hannibal and St. Joseph R. R. Co.
    I. The decision of the circuit judge upon the report of the commissioners was final and conclusive. (20 Mo. 70.)
    II. The writ of certiorari should have been directed to the judge who rendered the decision. The return should have been made by him personally. The return to the writ is made by the clerk of the circuit court for Marion county.
    III. Writs of certiorari can not be substituted for writs of error. (4 Mo. 251.) They will not lie where substantial justice has been done between the parties. (20 Pick. 71; 24 Pick. 181.) The supreme court can exercise appellate jurisdiction only. Certiorari does not lie after judgment. (1 Tidd’s Practice, 330.) Nor will it lie from a superior to an inferior court except where the former has original jurisdiction. The proceedings in the present cases were regular. The only objection made by Morton at the time that is now urged is, that the damages were assessed after the road had been constructed by the company. The record does not show whether damages were assessed before or after the work had been finished or commenced. The record shows that the requirements of the statutes were substantially complied with.
   Napton, Judge,

delivered the opinion of the court.

These two cases were before this court on writs of error, (20 Mo. 70,) and it was held that the writs of error would not lie in such cases, and the writs were therefore dismissed. The records are now before the court on certiorari.

We have no statute here regulating writs of certiorari, nor has this court, so far as we are aware, given any construction to the constitutional provision which authorizes this court to issue the writ. It is not deemed necessary to undertake in this case to determine the exact class or classes of cases in which this writ may be resorted to. A reference to the English commentators and judicial decisions will readily show that the writ is much more extensively used in that country than it could be here, and under such circumstances which would totally exclude any resort to such a proceeding-in this state. Admitting that a certiorari is the proper process to bring up a summary proceeding had before an inferior court, not according to the course of the common law and therefore not examinable on error, yet the power of the court which issues the writ is restricted to an examination of such irregularities as occur in the exercise of the jurisdiction of the inferior court and are apparent on the face of the record sent up. Where’ the inferior court has no jurisdiction at all, the opinion seems to prevail in England that a certiorari is not the appropriate remedy, but the party aggrieved must resort to his action of trespass. In this country, it seems to be the opinion of some of the courts that such cases are the very ones in which certiorari may be resorted to, and that a principal and leading object of the writ is to restrain the action of inferior magistrates within their proper sphere. (Birdsall v. Phillips, 17 Wend. 466; Redfield on Railways, § 202 and cases cited.) Without undertaking to decide which of these views is correct, we will proceed to examine the errors assigned in the proceedings now before us. Most of these objections, it will be perceived, are very technical, and do not touch the merits of the proceeding.

The first is, that the record does not show that the oath prescribed by the statute was taken by the viewex-s. The report of the viewers to the court states that the viewers, before proceeding to examine the land and assess the damages, took the oath prescribed by the statute, but the form of the oath is not copied in the report. As no objection was made by the owners of the land to the report on this ground, we must presume that the oath was in proper form and duly administered; for so the record states, and there is nothing to contradict it. If we require that every minute particular, which the statutes point out as requisite in- such proceedings, shall appear on the face of the record, so that this court may on certiorari be enabled to see an exact conformity to every requisition of the law in all the steps of the proceeding, however formal, not many proceedings of this character would be likely to stand. It is no more than a reasonable intendment, in this case, that the oath was substantially the one required, and we take the recital that it was so in the report of the viewers to be sufficient to show this.

It is next objected that it does not appear that the viewers appointed to condemn this land were citizens of the county of Marion. ' The statute requires the court to appoint” citizens of the county, and the record is silent on this subject. We think there is nothing in this objection. Our statute concerning jurors requires them to be “ free white citizens of the state, resident in the county, sober and judicious, of good reputation,” &c. Would this court reverse a judgment because the record of a trial did not show affirmatively that the jury which tried the case was composed of this class of citizens ?

The third objection is, that the notice given in the first instance was only nine days, when the law required it to be ten. This is true of the first notice; but the first assessment was set aside and another set of viewers appointed; and in relation to the second assessment no objection on the ground of notice is made or could have been made, as it seems upon the record to have been legal. The objection to the first notice may be considered as waived, and whether waived or not, it can not affect the propriety or legality of the ultimate assessment which the judge mentioned.

The next objection is, ‘ that the proceeding was instituted in the name of Joshua Gentry, who described himself as agent of the company, and not in the name of the Hannibal and St. Joseph Railroad Company. This objection, in point of fact, only applies to one of the cases ; for, on examining the record in the case of David Morton, the proceeding appears throughout in the name of the Hannibal and St. Joseph Kail-road Company. It is substantially so in both cases.

But the principal objection to these proceedings, and the one chiefly relied oír, is, that the road had in fact been constructed over the plaintiff’s land before the proceedings were instituted, and the proceeding authorized by the statute must precede the occupation of the land. If we confine the office of a certiorari, as it is in England, to such cases as are within the jurisdiction of the inferior tribunal whose proceedings are to be reviewed, this objection, if true in fact, would only show that the writ should be dismissed and the party remitted to his action of trespass. But if we adopt what seems to be the practice of the American courts and allow the writ in such cases, the answer to the objection is, that the fact nowhere appears on the record. The writs of error formerly made out in these cases were dismissed, as it appears from the opinion of the court (20 Mo. 74), because the proceedings were before the judge and not proceedings in court. This being so, it is clear that a bill of exceptions could not be taken, for our statutes nowhere make provision for bills of exception in such cases. But the bill of exceptions in this case does not materially differ from the record proper, and there is nothing to show in either that in point of fact the railroad had been constructed before the proceeding was commenced. It is true that on the last motion to set aside the second report this is alleged to have been the fact, and it is so stated as one of the reasons for a new trial; but non constat that the court may not have overruled the motion for the very reason that the fact was not as alleged. The petition on which one of these proceedings is based was in these words: “ J. G-., agent for said company, comes and gives notice to the judge of this court that said company wish to run their road through the N.W. ¼ of section 35, &c., of which said defendant is the owner,” &c., and prays “the appointment of viewers to examine and view said land and assess the damages thereof, and thereupon,” &c. In the case of Samuel Morton, the petition is, “ that the company wish to run the road through the land of said defendant and to occupy a strip,” &c., &c.; and, as the parties could not agree on the damages, the prayer is, that viewers be appointed “ to examine and view said land and assess the damages done thereto by reason of the location and construction of said roadand so the proceedings go on, indiscriminately using words in the past and future tense, from some of which language it might be inferred that the road was already built, and from other portions in the same proceeding that it was yet to be constructed. "Whether the road had been constructed before the proceedings in these cases commenced, or had not, was a fact, which, if it had been thought of any importance, would easily have been proved, and could readily have been made to appear on the record. But it is plain that the fact, however it was in reality, was deemed of no importance, for the only alleged ground for setting aside the first assessment was the insufficiency of the compensation allowed; and it was not until the second review was ordered and made, and a motion was made (as appears in the bills of exceptions) for a third appointment of viewers, that this subject was even alluded to, and then there is nothing to show how the fact was.

It is quite manifest from the whole record in these cases that the substantial and real grounds of objections were in both cases the supposed inadequacy of the damages allowed by the commissioners appointed by the court. Whether this was so or not, or upon what grounds the viewers acted, we have no means of knowing, and, if we had, could furnish no redress. Two sets of viewers, intelligent and impartial citizens, no doubt, of the county, and fully acquainted with all the facts which deserved consideration in forming a judgment, have passed upon the question of damages, and there is no power in this court to correct any erroneous opinion they may have entertained or acted on, if such error has in truth existed.

There is therefore no ground appearing upon the record returned under the writ to warrant this court in quashing the proceedings ; consequently the writ of certiorari must be dismissed. Judgment accordingly;

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