Boyce v. Christy

• Decision Date: 31 October 1870
• Citation: 47 Mo. 70
• Parties: MOSES BOYCE, Defendant in Error, v. WILLIAM CHRISTY, Plaintiff in Error.
• Court: Missouri Supreme Court

47 Mo. 70

MOSES BOYCE, Defendant in Error,

v.WILLIAM CHRISTY, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1870.

Error to Fourth District Court.

Lipscomb & Anderson, and Givens & Merryhew, for plaintiff in error.

I. This action was not brought until five years and six months had elapsed after Boyce arrived at the age of twenty-one years. Within two years from that time he could have sued, but not after that time. The law expressly forbids it. It is positively prohibitory. (Wagn. Stat., tit. “Apprentices,” §§ 11-17.)

II. The finding for plaintiff was irregular, and the judgment should have been arrested and a new trial granted. (Fenwick v. Logan, 1 Mo. 401; Hickman v. Bird, id. 495; Mooney v. Kennett, 19 Mo. 551; Clark's Adm'r v. Hann. & St. Jo. R.R., 36 Mo. 215; Pitts v. Fugates, Adm'x, 41 Mo. 405.)

Day & Spangler, for defendant in error.

BLISS, Judge, delivered the opinion of the court.

The plaintiff, formerly an apprentice of defendant, some six years after he had arrived at majority, brought suit upon the indenture. The statute only allows such suits to be brought within two years after the apprentice comes of age, and for that reason the petition was demurrable; for it is well settled that when the statute creates a bar by lapse of time, and the petition shows that the time has elapsed, the defense may be made by demurrer. (State v. Bird, 22 Mo. 470; McNair v. Lott, 25 Mo. 182; Van Hook v. Whitlock, 7 Paige, 373.) But the defendant failed to avail himself of the statute, either by demurrer or answer, and this being an action upon contract, its benefit was waived. (Benoist v. Darby, 12 Mo. 196; Sturgis v. Benton, 8 Ohio St. 215; Ang. Lim., § 285.)

The petition counts upon the indenture and charges various breaches in the form of independent counts, and the plaintiff obtained a general verdict of $400, upon which judgment was rendered. Under our system such general verdict is erroneous, and judgment should have been arrested. Each count calls for a separate judgment, and the rule under common-law pleadings can not apply to petitions under our statute. (Mooney v. Kennett, 19 Mo. 551; Clark's Adm'x v. Hann. & St. Jo. R.R., 36 Mo. 202; Pitts v. Fugates, Adm'x, 41 Mo. 405; State v. Dulle, 45 Mo. 269.)

The plaintiff asks that the petition be treated as containing but one count, notwithstanding its form, inasmuch as the indenture was but a single contract. We might, perhaps, get over the form if there were really but one cause of action in the petition. But the breaches were separate and distinct: one charging a neglect in sending the apprentice to school; another in paying him money; others in other things. Their investigation involved separate and independent inquiries and findings on the part of the jury, and they should be held to be independent causes of...