Blair v. Perpetual Ins. Co.

• Decision Date: 31 March 1847
• Parties: BLAIR v. PERPETUAL INSURANCE COMPANY.
• Court: Missouri Supreme Court

10 Mo. 559

BLAIR

v.PERPETUAL INSURANCE COMPANY.

Supreme Court of Missouri.

March Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

POLK, for Appellant. 1. The pleas retained by defendant, and to which the plaintiff below demurred, particularly the 5th and 8th, were good, and consequently the demurrer thereto ought to have been overruled. Acts of General Assembly, session of 1836-7, pp. 215 and 189; §§ 5 and 10 of the Charter; acts of 1842-3, p. 20, § 4. 2. The appellee's declaration is bad; it nowhere expressly avers that Homans accepted the office and appointment of agent of the appellee. Such acceptance is at most only matter of inference, from the facts stated in the declaration. Serre et al. v. Wright, 6 Taunt. 45 (1 Eng. C. L. R. 304); Jones v. Williams, Doug. 214. 3. The account stated between Homans and the appellee was incompetent evidence against Blair, who was Homan's security, and should have been rejected by the court. It was not made by Homans during the time and in the course of the discharge of the duties, for the faithful performance of which by Homans, Blair had bound himself, but after he had been suspended by the appellees in the discharge of those duties. See Hill & Cowen's notes to Phillips' Ev. p. 669, note 458, and the authorities there cited; Goss v. Wattington, 3 Brod. & Bing. 132 (7 Eng. C. L. R. 379); Whitmarsh et al. v. Gifford, 8 Barn. & Cres. 556 (15 Eng. C. L. R. 295); Middleton v. Milton, 10 Barn. & Cres. 317; Hotchkiss v. Lyon et al., 2 Blackf. R. 222; Shelby v. Governor, 2 Blackf. R. 289; Rial v. Bick, 3 Blackf. R. 242; Evans v. Beattie, 5 Esp. 27; Bacon v. Chesney, 1 Starkie, 192. 4. The appellee, when he first closed his case, was not entitled to recover, and the court below ought to have given the instruction prayed by the appellant to that effect. 5. The court below committed error, to the prejudice of the appellant, by allowing the appellee, after having once closed his case, and after the court had instructed the jury in matters of law upon the case thus made, to re-open his case, and to recall and re-examine his witness, Ranlett. 6. The-court below erred in refusing to give the instruction asked by the counsel of appellant, upon the close of all the testimony in the case. For authorities in support of this point, and the instruction to which it refers, see 2 Leigh's R. 157; S. P. Tindall v. Bright, Minor's R. 103; Pauling et al. v. United States, 4 Cranch, 219. 7. The court below committed error, prejudicial to the appellant, in the instruction which it gave, at its own motion, on the close of the evidence in the case. 8. The judgment rendered and entered up in this case is erroneous. See record, page 16; Rev. Code, title Penal Bonds, p. 782, §§ 6 and 8. 9. The court below ought to have set aside the verdict and granted appellant a new trial, not only because of the errors in law committed by it to the prejudice of the appellant, but also because of what is contained in appellant's affidavit, filed in support of his motion for a new trial.

GANTT, on same side. 1. That the declaration was bad, for two reasons; first, for not averring that Homans accepted the office of agent of plaintiff (6 Taunt. 47), and secondly, for not stating how the moneys embezzled, &c., by Homans had come to his hands. Douglass Jones v. Williams, p. 214 top page; 8 Term R. 243, top page, overrules the above; and so judgment on the demurrer should have been for defendant. 2. That the pleas demurred to, especially the 5th and 8th, were good, constituted a bar to the action of the plaintiff, and the demurrer to them should have been overruled. Said pleas were good on grounds independent of statutory enactment. Petrie v. Honnay, 3 Term R. 418; Steers v. Lashley, 6 Term R. 61; 2 Bos. & Pul. 373; 3 Taunt. 10; 4 Taunt. 165; 3 Ves. 373; Morck v. Abel, 3 B. & B., 35; 5 Mass. 395; Howson v. Hancock, 8 Term R. 575; 7 Term R. 630. Secondly, they were in direct conformity to the law of the State. Sess. acts of 1842-3, p. 20, § 4, title Banking, act of incorporation of plaintiff; Sess. acts of 1836-7, §§ 5, 11; Rev. Code of 1845, title Banking, §§ 7, 10, p. 167, and following. 3. That the court erred in permitting the accounts stated between Homans and Perpetual Insurance Company to go to the jury in this action. 5 Esp. 26, 27; 3 Harr. & McH. 242; 3. Yeates, 128; 2 Blackf., Hotchkiss v. Lyon, 222; Shelby v. Governor of Indiana, 2 Blackf. 26; 1 Dana, 177, Davis v. Whitesides; Cluggage v. Swan, 4 Binn. 150; 6 Binn. 12, Longenecker v. Hyde; 2 J. J. Marsh. 60, Thomas v. Thomas; Price v. Thornton et al., 10 Mo. R. 135. 4. That the circumstance of there being no plea denying the embezzlement, &c., makes no difference as to the character of the testimony required for fixing the amount of damages recoverable by the plaintiff. Even in case of no plea and judgment by default, an inquiry was necessary. Without testimony to establish this amount, the plaintiff could only have had judgment for nominal damages, if indeed he could have had judgment for any damages at all--even one cent. See Rev. Code of 1844, p. 815, § 42; p. 782, § 7, article Penal Bonds; and see Goss v. Wattlington, 3 Brod. & Bing., 132, where there was judgment by default, and testimony like the present excluded. 5. That the court below erred in permitting plaintiff to recall his witness after he had closed the case on his part, and give further testimony after the defendant had prayed the opinion of the court on the case made. 6. That the court erred in refusing to instruct the jury as prayed by the defendant, after offering the testimony of Harrison. 7. That the instruction given to the jury by the court of its own motion, was erroneous in this: that it made to them a suggestion to indulge a presumption not warranted by the evidence disclosed in the cause. Hollister v. Johnson, 4 Wend. 639; Haine v. Davy, 4 Ad & El., 899; and also in withdrawing matters of fact from the jury. 8. That upon the finding of the jury, only nominal damages could have been adjudged to the plaintiff, and that the court ought to have granted the motion of the defendant to instruct the clerk to enter up judgment accordingly. Rev. Code of 1845, title Penal Bonds, §§ 6, 8, p. 782. 9. That for the reasons assigned, the court below should have set aside the verdict and granted a new trial; and for not doing so, the judgment of the court below should be reversed.

GAMBLE & BATES, for Appellee. 1. The demurrer to the plea was rightly sustained; for the charter is not forfeited by the commission of the acts stated in the pleas, but can only be forfeited by the will of the sovereign, in a proceeding instituted for that purpose. Angell & Ames on Corp., 507, 664-5.2. The court rightly refused the instruction moved by defendant, “that upon the evidence given by the plaintiff in the case, the plaintiff is not entitled to recover,” because the record not only does not show a total lack of testimony on the part of the plaintiff, but on the contrary shows a good case well proved. 3. The court committed no error in allowing the plaintiff to recall the witness, Ranlett, and examine him touching a demand made on Homans for the balance due. 7. Mo. R. 115; 8 Mo. R. 26, Brown v. Burrus. 4. The court committed no error in refusing to give the instruction, No. 3, as moved by the defendant. 5. The final instruction given by the court to the jury, No. 4, was legal and right. 6. Independently of the instructions, the plaintiff, on the face of the record, was entitled to the verdict. There is no plea to the breach; non est factum, without oath, admitted the bond; and the plea of fraud was for the defendant to prove affirmatively. The breach was traversable, and not traversed, and therefore admitted; and the breach alleges that Homans had applied the $3,000 to his own use. The money in the hands of Homans was never employed in the alleged illegal business: the worst that can be said is, that the plaintiffs intended to misuse the money, but Homans prevented them by converting it to his own use. 7. Besides, no demand upon Homans was necessary, and so the instruction to the jury on that point was wrong. Even in trover, if the defendant come lawfully into possession, and afterwards convert the goods, no demand is required to precede the action. 3 Mo. R. 382, Himes v. McKinney.

SCOTT, J.

This was an action of debt on a bond in the penalty of $2,000, by the appellee (plaintiff below) against the appellant, as surety of J. J. Homans, who was agent for the appellee. The condition of the bond, after reciting that Homans had been appointed agent for the St. Louis Perpetual Insurance Company, provided that it should be void if the said Homans should well and truly perform all the duties of the said appointment, as the same should be prescribed by the board of directors thereof from time to time; and should faithfully preserve and account for all moneys of the said Company, which were or should thereafter come into his hands by virtue of his office, as might be required by the by-laws or authority of the board of directors of said Company. The declaration alleged that on the 1st May, 1844, said Homans, as such agent of the plaintiff, had received, and there had come to his hands by virtue of said office, of the moneys of the plaintiff, the sum of $3,000, which he did not faithfully, honestly and fully preserve and account for, as he was required to do by the authority of the board of directors; but, on the contrary, misapplied and disposed of the same to his own use. The bond was dated 1st November, 1843.

There were ten pleas to the action-- non est fuctum, and nine special pleas; the 2nd, 5th, 8th and 10th of which will only be noticed, as the others, after being ruled bad on demurrer, were stricken out by consent. The 2nd plea in substance avers that Homans, the agent of the Company, was employed out of the limits of this State, in New Orleans. The 5th and 8th, which are nearly the same, substantially aver, that...