Bain v. Clark
| Decision Date | 31 October 1866 |
| Citation | 39 Mo. 252 |
| Parties | JOHN G. BAIN, Respondent, v. GEORGE W. CLARK, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Common Pleas.
Plaintiff alleged in his petition that on or about the month of January, 1863, he shipped to defendant and defendant received five bales of cotton, belonging to plaintiff, containing 2,225 pounds, of the value of 60 cts. per pound, of the total value of $1,335; that the same was shipped to defendant to sell as commission merchant of plaintiff, and that defendant did sell said cotton in the month of January, 1863, and received the proceeds of such sale, and has failed and refused to pay over the proceeds thereof to plaintiff, and plaintiff asks judgment.
Defendant's answer admitted that he received five bales of cotton of the weight and value stated in plaintiff's petition, and that it was shipped in the name of plaintiff; but that, although shipped in his name, it was not his cotton, but that the same was purchased with defendant's money and belonged to him. Defendant denied that he sold the same as agent of plaintiff, and set up a counter-claim for $251.
Plaintiff admitted the counter-claim.
At the trial the plaintiff introduced the deposition of Jeremiah Bulkely, which in substance showed that McBain purchased the cotton in question of him and shipped it to St. Louis; also a letter from Clark & Co., dated 7th Jannary, 1863, to J. G. McBain, stating that the five bales of cotton shipped to them had been received and sold at 55 cents a pound. Plaintiff then rested.
Defendants read in evidence a letter of J. G. McBain in reply to the above, dated Memphis, January 12, 1863, stating that the cotton belonged to another party; also another letter, dated Memphis, January 23, 1863, stating that the cotton sent to Clark & Co. was not McBain's.
Defendant then introduced August Joins as a witness, who testified that on the 12th of October, A. D. 1862, Daniel A. Clark, a brother of defendant, and up to that time a member of the firm of Clark & Co., went south to buy cotton, and for that purpose took $2,000 belonging to the firm, but never afterwards accounted for it or returned any portion to the firm, and that he demanded of defendant the proceeds of this cotton, in the spring of 1863, as his own.
When this cotton was received, a bill of lading accompanied it; also a letter from Daniel A. Clark. Clark & Co. received no other shipment of cotton from Memphis, and no other bill of lading came with the cotton.
The bill of lading offered in evidence by defendant was objected to by plaintiff on the ground that it would contradict defendant's answer, which objection was sustained.
The bill of lading referred to showed that the cotton in question was shipped by “The Union Warehouse.”
The letter which accompanied it, written by D. A. Clark, was then offered in evidence, as follows:
To the reading of which plaintiff objected, and the objection sustained and defendant excepted to the rejection of said letter and bill of lading.
Defendant then moved for leave to amend his answer so as to deny that plaintiff shipped the cotton in question to him, and to deny that the bill of lading was in his name. And, being sworn in support of his motion, said that the bill of lading offered in evidence is the only bill of lading received by him with the cotton; that the same was not shipped by plaintiff nor in his name; he had always informed his counsel that the bill of lading was not in the name of plaintiff, and that he did not ship it; that, although he signed and swore to the answer, he must have overlooked the admission contained therein; that the cotton was shipped in the name of plaintiff, and the bill of lading was made in his name; that he was surprised, when he heard the answer read, that it admitted the shipping of the cotton and the bill of lading in the name of McBain, and so stated to his counsel when he heard it read in the trial to-day.
The court overruled the motion of defendant for leave to amend his answer in the manner indicated, and defendant excepted.
The testimony of August Joins resumed. He stated that he was present at an examination of Jeremiah Bulkely and other witnesses, in Memphis, on depositions; that the depositions were never finished; that he also conversed with the witness Bulkely about this cotton.
Defendant then offered to prove by the witness Joins, that in giving his deposition and in conversation with him Bulkely stated, that at the time the cotton was shipped it belonged to him and not to plaintiff; which was objected to by plaintiff, the objection overruled, and defendant excepted.
Defendant then offered to prove the same facts by the deposition of A. C. Ketchum; but plaintiff objected, the objection was sustained, and defendant exc...
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Nat. Plumbing Supply Co. v. Torretti et al.
...is, as to a materialman, res inter alios acta, and inadmissible. Bailey-Ball-Pumphrey Co. v. German, 213 Mo. App. 11, 247 S.W. 483; Bain v. Clark, 39 Mo. 252. (16) This court sitting in equity has the jurisdiction and the duty to order the entry of a judgment, particularly where the questio......
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National Plumbing Supply Co. v. Torretti
...is, as to a materialman, res inter alios acta, and inadmissible. Bailey-Ball-Pumphrey Co. v. German, 213 Mo.App. 11, 247 S.W. 483; Bain v. Clark, 39 Mo. 252. (16) court sitting in equity has the jurisdiction and the duty to order the entry of a judgment, particularly where the question is w......
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