Blakely v. Bennecke

• Decision Date: 28 February 1875
• Citation: 59 Mo. 193
• Parties: WILLIAM E. BLAKELY, Respondent, v. LEWIS BENNECKE, Appellant.
• Court: Missouri Supreme Court

59 Mo. 193

WILLIAM E. BLAKELY, Respondent,

v.LEWIS BENNECKE, Appellant.

Supreme Court of Missouri.

February Term, 1875.

Appeal from Sullivan Circuit Court.

J. H. Shanklin, for Appellant.

Geo. W. Easley, for Respondent.SHERWOOD, Judge, delivered the opinion of the court.

Action on an instrument in this form:

$500.

Head Qrs. U. S Forces,

Brunswick, Mo., January 3, 1865.

Received of Mrs. Catherine Blakely the sum of five hundred dollars, $500, to be used to buy Spencer Rifles, for Co. I., 49th Regt. Mo. Vols.; said money to be returned as soon as the County bounty is paid to said Company in full without interest.

LOUIS BENNECKE,

Capt. 49th Regt., Mo. Vols.

Com'd'g Post.

The suit was brought by the husband of Mrs. Blakely.

There were four counts in the petition; the first charged that plaintiff's wife, acting as his agent, on the 3rd day of January, 1865, loaned the defendant the sum mentioned, which he, by the instrument referred to, promised to return, etc., without interest, so soon as the county bounty should be paid as therein specified; that such payment was made on the 1st day of March, 1866, but the money borrowed was not returned, and judgment was asked with interest from the period last stated. The second count was for money loaned to defendant, and was like the first as to amount and time of loan, except that no instrument was declared on, nor time of payment designated. The third count was for money had and received; and otherwise was like the second. The fourth count was for the above mentioned sum; and charged that the same was obtained of the wife of plaintiff by duress, etc. To this last count a demurrer was sustained.

The defendant then answered to the remaining counts, admitting the execution of the instrument sued on, but denied that it was signed in his individual capacity; and stated that it was only executed by him as the agent of the company of which he was captain, and alleged that such agency was disclosed as well as the name of his principal, the said company, at and before receiving the money, etc. Neither the agency of Mrs. Blakely nor the payment of the county bounty on the 1st day of March, 1866, was denied. There was a general denial on the other counts.

A reply was filed, and the parties went to trial, upon the first count in the petition; and the plaintiff, after reading the instrument sued on in evidence, without objection, and after proving by Mrs. Blakely that she was his wife, and that the money loaned belonged to him, rested.

A great deal of testimony was then introduced by the defendant, tending to show that he borrowed the...