Dougherty v. Whitehead
| Decision Date | 31 October 1860 |
| Citation | 31 Mo. 255 |
| Parties | DOUGHERTY, Respondent, v. WHITEHEAD, Appellant. |
| Court | Missouri Supreme Court |
1. A fact stated in a motion to a court below is no evidence to the supreme court of the existence of such fact. If the facts stated in the motion did occur on trial, the party should have excepted and filed his bill of exceptions, which is the only evidence of their existence.
2. Bill of exceptions; what it should contain.
3. Where one man at the request of another performs beneficial services for him, unless it is agreed, or it can be so inferred from the circumstance that the services were to be rendered without compensation, the law, in the absence of any express contract, will imply a promise on the part of him for whom the services were rendered to pay for them what they are reasonably worth.
4. Principal bound by the acts of his agent.
Appeal from Stoddard Circuit Court.
The instruction given by the court below and referred to in the opinion of the court is in these words: “If the jury believe from the testimony in this cause that William A. Whitehead received the notes specified in the receipt mentioned in plaintiff's petition, and agreed therein to collect said notes or account for the same, then and in that case it devolves upon said Whitehead to account for the same, either in money, the return of said notes, or copies of judgments, with the evidence that the money could not be made by the use of reasonable diligence.”Jno. W. Noell, for appellant.
I. The court erred in the instruction given. The receipt of defendant was for notes put in his hands for collection, and in such case he was only bound for what he actually collected, or what was lost by wilful misconduct or negligence. The contract on the part of Whitehead to collect was gratuitous; no compensation was fixed or agreed on. Then, in each case, the onus was on the plaintiff to prove the collection, or prove the wilful negligence or misconduct of defendant, whereby the plaintiff was damaged. The instruction given was therefore wrong. The instruction refused, or one embodying the same proposition in different phraseology, should have been given. (Story, Bail. 182.)
This was an action growing out of a receipt given by the defendant, Whitehead, to the plaintiff, by which the defendant undertook to collect a great many small notes for the plaintiff. After the receipt had been read in evidence, there was some testimony given of a settlement between the defendant and Lemuel H. Jackson, who, it was alleged, was an agent for the plaintiff.
The court gave an instruction...
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...court in its order sustaining the motion for new trial, as disclosed in its memorandum. Such allegations may be wholly ignored. Dougherty v. Whitehead, 31 Mo. 255; Daggs v. Smith, 193 Mo. 494, 91 S.W. Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721. (7) The same rule applies to plaintiff's ......
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...saved. An affidavit attached to the motion for new trial, stating that such an argument was made, is no proof thereof. Dougherty v. Whitehead, 31 Mo. 255; State v. Schrum, 255 Mo. 273, 164 S. W. Although defendants' answer, after stating a general denial, contained an averment that "if plai......
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Mavrakos v. Mavrakos Candy Co., 41170.
...court in its order sustaining the motion for new trial, as disclosed in its memorandum. Such allegations may be wholly ignored. Dougherty v. Whitehead, 31 Mo. 255; Daggs v. Smith, 193 Mo. 494, 91 S.W. 1043; Mickel v. Thompson, 348 Mo. 991, 156 S.W. (2d) 721. (7) The same rule applies to pla......