Allen v. Brown

• Decision Date: 30 June 1838
• Citation: 5 Mo. 323
• Court: Missouri Supreme Court
• Parties: ALLEN & DOUGHERTY v. BENJAMIN B. BROWN.

5 Mo. 323

ALLEN & DOUGHERTY

v.BENJAMIN B. BROWN.

Supreme Court of Missouri.

June Term, 1838.

T. POLK and J. B. BOWLIN, for Appellants. 1. Gabriel P. Cerre had no such interest in the matter under consideration, as was in law sufficient to exclude his testimony. 1 Starkie's Ev. 20, 21, 22; also, 102, 103, 104; also, Saund. Pl. and Ev. 941, 944, 945; 1 Stark. Ev. 105, 106, 107, &c. 2. The rule which excludes agents in an action against the principal for negligence, extends only to cases concerning tortious acts or negligence; in all other cases they are competent. Green v. N. R. Company, 4 T. R. 590; 2 Saund. Pl. and Ev. 947; Buller's N. P. 289; 2 H. B. 590. But in this case the defendants were in capacity of agents and not the witness. 3. It is now well settled that an interest in the question in dispute, is not sufficient to render the witness incompetent. 2 Saund. Pl. and Ev. 941; Watson v. Shelby, 1 T. R. 300; Bent v. Baker, 3 do. 32; 7 do. 603; Rex v. Bray, Hardw. 306. 4. In 1 Saund. Pl. and Ev. 67, the competency of the purchaser of goods, in action by principal against agent for not accounting, is clearly laid down. It is there said in so many words, that in such action “the purchaser is a good witness to prove the receipt of the proceeds of the sale by defendants.” 5. In an action of the present kind, the plaintiff must prove the defendant's retainer and employment as stated in the declaration. 1 Saund. Pl. and Ev. 66, 67; Lopez v. De Tastu, 1 Brod. & Bing. 544. The objection to Cerre's testimony came too late; he had been examined in chief, and after being allowed to go through his testimony, the court took it upon itself to tell the jury they must exclude all he said, because he was interested. See 1 Stark. Ev. 123, 124, 125; Ogle v. Pulaski, 3 Eng. Com. Law, 164.

BOGY and HUNTON, for Appellee. 1. Cerre was an interested, and therefore, an incompetent witness. He was the purchaser of the negro girl from Allen & Dougherty, who were the agents of both parties; and if, by his testimony, the action of the plaintiff were defeated on the ground of unsoundness of the slave, then he would be relieved from all liability. 2. The defendants were directed by Brown to sell the negro girl for cash; they received the woman; they sold her; she was delivered by them to Cerre; the contract of the sale was then consummated, and the defendants liable for the amount for which the negro was sold. 3. There is not the slightest proof that the negro was returned to Allen & Dougherty or to Brown. She was never returned to the plaintiff, and what disposition was made of her by Mull, in whose possession the witness put her, does not appear. 4. The contract of sale could not be rescinded without proof of fraud and unsoundness of the slave, and then it would be incumbent on the purchaser to return her and place the vendor in statu quo. 4 Bibb, 91; 1 J. J. Marshall, 54. It is repeated, that Cerre failed to return the negro. 5. The court properly overruled the defendant's motion for a new trial, because it was not made in time. Judgment was had on the 27th April, and the motion was made on the 3rd of May, and one of the reasons filed as late as the 5th of May. Mo. Stat. 469. The authorities cited are Singleton v. Munn, 3 Mo. R. 465; Bellisime v. McCoy, 1 Mo. R. 318; 4 Dunford & East, 468, Wilkinson v. Payne, as to new trials; and 5 Dunford & East, 436, as to the time to move for a new trial.

EDWARDS, J.

This was an action of assumpsit, commenced by Brown against Allen & Dougherty, in the St. Louis Circuit Court, to recover the value of a negro woman sold by them as auctioneers, The declaration contains three counts; the first and second, special counts, setting out in substance the same state of facts; that is, that the plaintiff delivered the girl to the defendants, to be by them sold and disposed of for and on account of the plaintiff, for a certain reasonable reward to be paid defendants by plaintiff, in consideration of which, defendants undertook to render to plaintiff a true account of the sale of said negro; that plaintiff requested defendants to account, and that defendants refused to do so. The third count is for money had and received to the use of the plaintiff. The defendants pleaded the general issue; the trial was had on the 27th day of April, 1838, and verdict and judgment for plaintiff. On the 3d of May following, the defendants moved for a new trial, and filed their reasons, and the court overruled the motion. On the trial, Gabriel P. Cerre was called as a witness by the plaintiff, and Cerre proved that he purchased the slave, in the declaration mentioned, at public auction, of the defendants, who were auctioneers; that at the sale the girl was represented as a sound woman, a good washer and ironer; but that he discovered, after the girl was taken home by him, that she was lame and not sound; and that a day or two after, not considering himself bound by his bidding, he put the girl in the hands of William Mull for the purpose of sending her back to the defendants. The sale was a cash sale. Bernard Finney proved that he was present and bid for the girl; that she was offered for sale by the defendants, as auctioneers, for cash, as sound, a good washer and ironer; that he bid for the girl as high as $250, and that Cerre overbid him $5, and the girl was knocked down by the auctioneer to said Cerre; the said slave was present at the sale; appeared to be of the age of forty-five years, and apparently sound and healthy; but that the witness, on some one remarking that the girl was lame, desisted from bidding. The witness further proved that, after the sale, the negro passed out of the auction room, but witness did not see her go...