Barada v. Inhabitants of Carondelet

• Decision Date: 31 July 1844
• Citation: 8 Mo. 644
• Parties: BARADA ET AL. v. THE INHABITANTS OF CARONDELET.
• Court: Missouri Supreme Court

8 Mo. 644

BARADA ET AL.

v.THE INHABITANTS OF CARONDELET.

Supreme Court of Missouri.

July Term, 1844.

APPEAL FROM ST LOUIS COUNTY COURT.

PRIMM, TAYLOR and POLK, for Appellants. 1st. The court below should have excluded the testimony of one Joseph Le Blond from the jury, for the reason, that said Le Blond was an inhabitant of said town of Carondelet, and had such an interest in the result of this suit, as to render him an incompetent witness to testify in this cause. Angell and Ames on Corporations, 16; Greenleaf on Ev. 380; 2 Johns. R. 175. 2nd. There was no sufficient and legal testimony before the court and jury, that said Barada was the lawfully appointed treasurer of said town, and the court erred, in not sustaining appellant's motion to non-suit the plaintiff. 3rd. The court erred in its instructions to the jury, as to the law applicable to the cause made out by the proof. 4th. The court erred in overruling the demurer to the first count of the declaration, when the same should have been sustained. 5th. The court erred in overruling appellant's motion for a new trial, when, by the law of the land, the same ought to have been sustained.

BOGY and HUNTON, for Appellees. 1. The defendant introduced no testimony to sustain any of his pleas, except that different kinds of money had been paid to him, and that he offered to settle with the plaintiffs, if they would receive Mineral Point money. 2. Admitting that different kinds of money had been paid to defendant, as treasurer, yet he cannot avail himself of this, as he failed to specify and distinguish the different kinds of money thus paid him, as required by the ordinance under which he held his office. See the Ordinance. 3. If depreciated money was paid to defendant, and he complied with the ordinance regulating and prescribing his duties, in distinguishing it in the book by him kept, yet, if he used the money for his own particular purposes, he is responsible for it in gold and silver. By the testimony given by the defendant's own witness, it is proven that he failed to pay orders drawn upon him by the register of the town of Carondelet, long before the money which had been paid to him became depreciated; thus showing, that he had not kept the money paid to him, and had used it for his own purposes. 5. If an agent, such as the treasurer of a town, receives depreciated bank notes for his principal, and credits it to him as money, and is in the habit of paying out on orders, the same kind of money which he received. and not distinguishing, in his accounts, the kind of money which he receives and pays out, but makes out his accounts in dollars and cents generally, he is liable to the principal for any balance in his hands, in the legal coin of the country. 6. The balance appearing to be due, by the book kept by the defendant, is prima facie evidence of such balance being due by the defendant in dollars and cents; and it rests upon the defendant to show, in order to entitle him to a credit, that that balance was made, not of money received and credited on general account, but of a special deposit of notes of the Bank of Mineral Point, which have always been kept on hand, and have been there, ready to deliver to the plaintiff on demand. 7. The witness, Le Blond, was a competent witness: although he is one of the corporators, he had no direct interest in the event of the suit; he comes within the rule, that a corporator, not disqualified on the score of interest, is a competent witness. 2 Starkie's Ev. 580, note g.; 1 Paige's Ch. R. 613, in the matter of Kip____; Angell & Ames on Corporations, 389, 390, and notes 1, 2, 3, 4 and 5. See chapter, Digest of Cases, as to interest of witnesses, in Peake, 167 ( admission ex necessitate); 1 Starkie on Ev. 120; Middleton v. Frost, 4 Cant. & Payne, 15, or 19 Eng. Com. L. R. 255; State of Connecticut v. Bradish, 14 Mass. R. 294. See, also. Phillips on Ev. 97, 126. 8. When the interest of the witness is very remote, and uncertain, he is competent. Fales & Smith v. Belknap, 1 Johns. R. 486; Cowen v. Haines, 11 Johns. R. 76; Bloodgood v. The Overseers, &c., 12 Johns. R. 285; 1 Phil. Ev. 58, and note C; 4 Tenn. R. 17; King v. Prossen,____; Bent v. Baker, 3 Tenn. R. 27. 9. A commoner is admissible to prove a right of common, unless the common be claimed by prescription, in the right of a particular estate. The reason of the rule is, that, in case of customary commoners, a verdict in an action for or against one, is evidence for or against another claiming the same right. Jacobson v. Falls, 2 Johns. R. 170 (see opinion of Justice Thompson); Ld. Raymond, 731; Doug. 374; Skinner, 174; 1 East, 355; 1 Tenn. 302, 303; Peake's Ev. 31. 10. By the modern practice, where the interest is very small and remote, the objection goes to the credibility of the witness, and not to his admissibility.

TOMPKINS, J.

This is an action of assumpsit, commenced in the Court of Common Pleas of St. Louis county, against Peter D. Barada and others, by the Inhabitants of the town of Carondelet. The declaration contained three counts. The first is founded on a writing, purporting to have been executed by said Barada, and by two others, as his securities, acknowledging themselves to be held and firmly bound to the plaintiffs, in the sum of three thousand dollars, subject to the condition following, viz.: “That whereas the said Peter D. Barada was re-appointed, by the board of trustees of the town of Carondelet, treasurer of the said town, from and after the 24th day of April, in the year of 1841, it was conditioned, that if the said Peter D. Barada should well and truly perform the duties of his office, aforesaid, &c., and render a true account of all moneys in his hands, &c., and pay over the same, as requisite, then the said writing to be null and void, otherwise to be and remain in full force and virtue,” &c. It is then averred, that a large sum of money came to his hands as treasurer, as aforesaid, and that said Barada had not paid it over, &c. The other two counts of the declaration were the common money counts. To this first count, there was a demurrer. The demurrer was overruled, and leave given to the defendant to plead. No judgment was entered on the demurrer, and the defendant then pleaded to all the counts. 2nd. To the first count, a sham plea, not supported by one word of evidence, is pleaded. 3rd. The third plea is also to the first count, and is equally unsupported by evidence, to wit: that at the commencement of this suit, the said Barada had on hand, and since that time, has had, and still continues to have, and still has in his hands, three hundred bank notes, of the Bank of Mineral Point, of the denomination of five dollars each, which bank notes were so placed in said Barada's hands, by the plaintiffs, for safe-keeping, and which said bank notes the said Barada has always been ready and willing, and before commencement of this suit, &c., offered, and was ready to deliver to the said plaintiffs, &c. 4th. The fourth plea denies that the defendant, Barada, ever was treasurer: this plea is pleaded also to the first count. 5th. In the fifth, the defendant pleads, that he has paid the several sums in the said declaration demanded, &c. 6th. In the sixth, the defendant pleads a set-off. Replications are filed to all these pleas, and issues made. A verdict was found for the plaintiffs, on all the issues; the damages were assessed twelve hundred and five dollars and ninety-eight cents, and judgment rendered accordingly.

The bill of exceptions shows, that on the trial, the plaintiffs read in evidence the charter of the town of Carondelet, and the proceedings of the corporate body appointing the defendant treasurer, and also the instrument of writing on which the suit is founded. The plaintiffs then produced, as a witness, one Joseph Le Blond, a corporator of the said town of Carondelet, and the defendants moved to exclude him, as incompetent, from interest: the motion was overruled, and exceptions taken. The plaintiffs then produced, and proved by said Le Blond, certain ordinances passed by the...