Lapsley v. McKinstry

• Decision Date: 31 March 1866
• Parties: THOMAS LAPSLEY, Respondent, v. JUSTUS MCKINSTRY, Appellant.
• Court: Missouri Supreme Court

38 Mo. 245

THOMAS LAPSLEY, Respondent,

v.JUSTUS MCKINSTRY, Appellant.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Circuit Court.

Shreve & Sanders, for appellant

Wm. T. Mason, for respondent.

WAGNER, Judge, delivered the opinion of the court.

The error complained of in this case is, the giving instructions in the court below, on behalf of plaintiff, and the refusal of the second instruction asked for by defendant.

The action was brought by the plaintiff to recover money alleged to be due him by the defendant, for keeping defendant's horses and buggies, and for the hire of horses and carriages by the defendant from plaintiff's stable. The defendant denied the account, and claimed that the horses were kept, and the carriages and buggies furnished, whilst he was acting as quartermaster of the United States, at St. Louis, for the Western Department, and that they were for the use of the government, and that he was not liable therefor.

There can be no dispute as to a portion of the items, for they were clearly furnished for the defendant's private, individual use. Some of the horses were got and used, at different times, by the messengers of the quartermaster's department, but it seems the government refused to recognize the claim and pay the bill. The account kept by plaintiff was opened against the defendant in his own individual name, and a bill of items duly rendered; the defendant making no objection, only stating that he desired the account made out in such a manner that it would show who got the horses and buggies, at different times.

For the plaintiff, the court, in substance, declared the law to be, that before defendant could defeat the recovery of plaintiff, on the claim that the articles were furnished to the use of the United States, on his (defendant's) request as agent, he must show that he had legal authority to contract for the same, and bind the United States, and that if he failed to show such authority, then the law presumes that he ordered the same for his own use. And furthermore, defendant must show by competent proof that under the laws of the United States he had authority to make the contract as agent, and bind the government. For the defendant, the court instructed that, if the account sued on was made, giving the credit and trust to the government, and not to the defendant, plaintiff could not recover; and refusing to give an instruction declaring that, if at the time the bills were contracted the defendant was the quartermaster-in-chief of the Western Department, at St. Louis, and, as such, said bill was contracted with him, and plaintiff, with such understanding, presented the account to the quartermaster, and the same was audited by voucher, then plaintiff could not recover for so much of the account as was so contracted.

The court committed no error in refusing this last instruction, as the one just previously given, at the request of the defendant, covered the whole ground, and stated the law in a clear and concise form. The account was charged up and kept against the defendant in his private name, with his knowledge and consent, and the articles were furnished on his personal order. There is nothing satisfactory appearing to show that plai...