Pearce v. Burns

Decision Date31 March 1856
PartiesPEARCE, Respondent, v. BURNS, et al., Appellants.
CourtMissouri Supreme Court

1. Where a cause is tried by the court sitting as a jury, the finding of the facts should warrant the conclusion of law declared by the court and the judgment rendered; in reviewing the law of a case upon the facts found, the supreme court will not, from the facts, as found, infer or declare the existence of other facts.

Error to St. Louis Court of Common Pleas.

This was a suit commenced by attachment upon two promissory notes, executed by defendants, James Burns and Henry Burns, amounting in the aggregate to $283 50. The writ of attachment was predicated upon an affidavit that defendants had “fraudulently concealed or disposed of their property and effects so as to hinder and delay their creditors.” This writ was served upon E. G. Roberts and Benjamin F. Kerr, of the firm of Roberts, Kerr & Co., as garnishees.

Defendants put in issue, by a plea, the truth of the facts alleged in the affidavit. Upon the issue thus raised, the court sitting as a jury, found for plaintiff, and judgment by default was afterwards given for plaintiff for the full amount of the notes sued upon. The following is the finding of the facts by the court upon the issue raised by the plea to the affidavit: “That in January, 1854, the copartnership of Burns & Brother was composed of James Burns and Henry, and was doing business in Warsaw, Missouri; that said copartnership was at that time in failing circumstances; that it was indebted to the firm of Houseman & Lowry, of St. Louis, for over eleven hundred dollars, cash advances, and was also indebted to the plaintiff and to others in St. Louis; that Houseman, of the firm of Houseman & Lowry, went to Warsaw in that month to collect the debt due Houseman & Lowry; that Houseman took a bill of sale of a lot of bacon and lard belonging to Burns & Brother, supposed to be worth at the time in Warsaw two thousand five hundred dollars, to secure the payment of the demand of Houseman & Lowry, and under said bill of sale took possession also of the property itself. The same had been previously stored by Burns & Brother, in a warehouse owned by Mr. Hicks. Houseman rented the warehouse of Hicks, and took the key thereof, and, on leaving Warsaw for St. Louis, left the key with the firm of Henry Boreland & Co., or with Mr. Blakey, as the agent of Houseman and Lowry. Before leaving Warsaw, Mr. Houseman was requested by the defendant to accept certain bills which he would draw in favor of some of the debtors of Burns & Brother in St. Louis, for the surplus, if there was any, as it was supposed there would be, after paying out of the proceeds of the sale of said property the demand of said Houseman & Lowry. Houseman refused to promise to accept said drafts, but agreed that out of said surplus he would pay such drafts to the extent of the surplus, in the order in which such drafts should be presented to him. In February, 1854, Mr. Simpson, as agent of the plaintiff, called on Burns & Brother, in Warsaw, to collect a demand that the plaintiff had against them. They gave to Simpson a draft on Houseman & Lowry, in favor of the plaintiff, for a part of his demand, and promised thereafter to pay the balance, assuring said Simpson, at the time, that said draft would be paid by Houseman & Lowry; that they (Burns & Bro.) had put said property in the possession of Houseman & Lowry, and that there would be a surplus large enough to satisfy the draft. Said draft was presented by said Simpson, as plaintiff's agent, to said Houseman & Lowry, and the latter declined to accept, as the property had not yet arrived, or been shipped; but promised, if there was a sufficient surplus, to pay that draft, after the payment out of the surplus of two others that had been previously presented. Burns & Brother were insolvent at the time Simpson called on them, and continued to be so until after these transactions. In June following, the property in question was shipped in the name of and by Martin & Cook, of Warsaw, to Roberts, Kerr & Co., of St. Louis, under instructions from Martin (who was brother-in-law of James and Henry Burns) to pay out of the proceeds of the shipment to Houseman & Lowry their demand...

To continue reading

Request your trial
7 cases
  • McBride v. Bank & Trust Co., 31671.
    • United States
    • Missouri Supreme Court
    • April 12, 1932
    ...party and to compel that court to state theory of decision. Bailey v. Wilson, 29 Mo. 21; Nichols v. Carter, 49 Mo. App. 401; Pearce v. Burns, 22 Mo. 577. (b) Authorities reviewed. Korneman v. Davis, 281 Mo. 234, 219 S.W. 904; St. Louis Hospital Assn. v. Williams, 19 Mo. 609; Sutter v. Strei......
  • McBride v. Mercantile-Commerce Bank & Trust Co.
    • United States
    • Missouri Supreme Court
    • April 12, 1932
    ... ... decision. Bailey v. Wilson, 29 Mo. 21; Nichols ... v. Carter, 49 Mo.App. 401; Pearce v. Burns, 22 ... Mo. 577. (b) Authorities reviewed. Korneman v ... Davis, 281 Mo. 234, 219 S.W. 904; St. Louis Hospital ... Assn. v ... ...
  • In re Kansas City Star Co.
    • United States
    • Missouri Supreme Court
    • September 3, 1940
    ... ... appellants. Bailey v. Wilson, 29 Mo. 21; Nichols ... v. Carter, 49 Mo.App. 401; Pearce v. Burns, 22 ... Mo. 577; Korneman v. Davis, 281 Mo. 234, 219 S.W ... 904; St. Louis Hospital Assn. v. Williams, 19 Mo ... 609; Leilich v ... ...
  • In re Kansas City Star Co.
    • United States
    • Missouri Supreme Court
    • September 3, 1940
    ...and refuse to make findings of fact offered by appellants. Bailey v. Wilson, 29 Mo. 21; Nichols v. Carter, 49 Mo. App. 401; Pearce v. Burns, 22 Mo. 577; Korneman v. Davis, 281 Mo. 234, 219 S.W. 904; St. Louis Hospital Assn. v. Williams, 19 Mo. 609; Leilich v. Chevrolet Motor Co., 40 S.W. (2......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT