Bell v. Hoagland

• Decision Date: 31 January 1852
• Citation: 15 Mo. 360
• Parties: BELL v. HOAGLAND.
• Court: Missouri Supreme Court

15 Mo. 360

BELL

v.HOAGLAND.

Supreme Court of Missouri.

January Term, 1852.

APPEAL FROM COOPER CIRCUIT COURT.

Bell brought an action against Hoagland on the following instrument of writing: “Received, Boonville, March 14th, 1845, of Wm. G. Bell, three hundred dollars to be invested in lumber. (Signed) GEO. T. HOAGLAND”; and alleged in his petition that the defendant. Hoagland, had not invested the money in lumber according to his undertaking, but had converted it to his own use and refused to return it on demand, although a reasonable time for its investment had elapsed.

The defendant set up as his answer and defense that the plaintiffs' supposed cause of action had already been passed upon and adjudicated in a former suit, the record of which was filed as an exhibit with his answer.

The facts of this case are about these. The defendant held two promissory notes which were executed to him by the plaintiff, one of which was for $828 38-100, dated the 1st of January, 1844; and the other was for $188 53-100, dated 1st November, 1844, both of which were due one day after date and bore interest at eight per cent. per annum. These notes, long after they became due, that is to say, in the year 1849, were assigned by the defendant to one Thomas Hughes, who instituted suit, by petition in debt against Bell, upon these notes in the Circuit Court of Cooper county, and in that suit Bell put in the statutory plea of the general issue, under which he had the right to make any set-off, or other defense he might have. Hughes died and the suit was revived in the name of the defendant, George T. Hoagland, as his administrator, and upon the trial of that case in the Circuit Court, the plaintiff in this suit, who was defendant, there set up as an offset the receipt or instrument of writing upon which this action is founded, and the same was passed upon in that suit by the court, sitting as a jury, and the plaintiff in the former suit recovered a judgment and the offset was not allowed, and Bell took that case to the Supreme Court, and the judgment of the Circuit Court was affirmed.

Upon the trial of the present action before the Circuit Court, with a view to raise the question of former recovery, the defendant admitted, so far as the trial of this case was concerned, that the money had not been invested in lumber and that it had not been returned to plaintiff on request, and relied upon the former adjudication as a complete bar to the plaintiff's action. The case was submitted to the court sitting as a jury, and the plaintiff moved the court to declare the law as follows: 1st. The plaintiff moves the court to declare and pronounce the law of this case to be, that if the court find from the evidence, that upon the trial of the cause heretofore in this court, between Hoagland as administrator of Hughes against Wm. G. Bell, the plaintiff in this suit claimed a credit by way of set-off in that action for the amount of the three hundred dollars specified in the receipt of Hoagland to Bell, mentioned and annexed to Bell's petition in this case, and that the court in that cause rejected and disallowed the credit so claimed and demanded by Bell in that suit, upon the ground that the court in that case believed and declared that the sum of three hundred dollars, mentioned in the receipt, was a claim or sum of money which appertained to a partnership business between said Hoagland and Bell, that then the judgment and recovery had and obtained in said suit against the plaintiff in this suit, Bell, is no bar to Bell's right in this action to demand of Hoagland the sum of money mentioned in said receipt. 2nd. That in this civil action by Bell v. Hoagland, if the court find that the claim of three hundred dollars, mentioned in said receipt, be a demand appertaining to or growing out of a partnership business between the said Hoagland and Bell, as the defendant hath stated in his answer in this suit, then unless the defendant has shown, in his evidence upon this trial, that the sum of money specified in said receipt is not due the plaintiff, the court ought to find for the plaintiff the said sum of money, three hundred dollars. 3rd. That if the court find from the evidence that the plaintiff, Bell, loaned to the defendant, Hoagland, the sum of three hundred dollars to be invested in lumber, as is specified in said receipt, and that he, Hoagland, failed and neglected to invest the same, and that after a reasonable time had elapsed from the time of receiving the money, so to invest the same as mentioned in the receipt the said Bell demanded of Hoagland a return of the money to him so loaned, and that Hoagland refused to return the same to Bell, and that the demand so made by Bell and refused by Hoagland was prior to the bringing of this suit, then the court ought to find for plaintiff in this action. 4th. That it devolves upon the defendant in this action to prove that the three hundred dollars mentioned in said receipt is a demand appertaining to a partnership business to defend himself against the plaintiff's right of recovery in this action, and that the mere fact that the judge of this court, in the trial of the cause between the administrator of Hughes' estate and said Bell (when the same was offered in that suit as a set-off), was of the opinion and declared that the same was a demand appertaining to such partnership, is no evidence in this cause that the demand was or is a partnership demand as declared by said court. 5th. That if the court find from the evidence, that the defendant received from Bell the said sum of three hundred dollars to invest in the purchase of lumber, as specified in said receipt, and the defendant failed and neglected to do so, and that after a reasonable time had elapsed, after having received the money, for the defendant to invest the same, he failed to invest the same in the purchase of the lumber, and that afterwards and before the commencement of this suit, the plaintiff demanded a return to him of the money and defendant refused to return the same to him, then the court ought to find for the plaintiff in this action. The court refused the 1st, 2d and 4th and gave the 3rd and 5th instructions asked for by the plaintiff, and to the refusal of the court to give the 1st, 2nd and 4th instructions the plaintiff excepted.

The court, at the instance of the defendant declared the law to be as follows: “That although the court may find from the evidence, that the plaintiff loaned or put into the defendant's hands the sum of three hundred dollars, as stated in the receipt read in evidence, to be invested in lumber, and that the defendant failed to invest the same according to said receipt, and that the said sum of...