Buford v. Byrd

• Decision Date: 31 July 1843
• Citation: 8 Mo. 240
• Parties: BUFORD, ADMINISTRATOR, v. BYRD.
• Court: Missouri Supreme Court

8 Mo. 240

BUFORD, ADMINISTRATOR,

v.BYRD.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM THE CIRCUIT COURT OF WASHINGTON COUNTY.

SCOTT and ZEIGLER, for Appellant. 1. Did not the court err in permitting ne issues were made up, and after the lapse of a term, to withdraw tion, and file a demurrer to the pleas? 2. Did not the court err in suining the demurrer to the pleas of total failure of consideration?

P. COLE, for Appellee. 1. The court gave judgment for the wrong party: 2. The court erred in permitting the plaintiff to withdraw his replication, and file a demurrer. 3. That the court sustained the plaintiff's demurrer, &c. And the simple point relied upon by the appellee is, that the court did what it should have done in each and every of these particulars.

TOMPKINS, J.

Thomas Byrd, assignee of John E. Cowan, brought an action of debt against James Buford, administrator of William Buford, on a single bill obligatory, made by the intestate in his life-time; and Byrd having obtained a judgment in the Washington Circuit Court, Buford appeals to this court. Buford pleaded two pleas, which are in substance the same, to wit: That the writing sued on was given for land; and that the vendor, Cowan, to whom the said writing had been made, and by whom it had been assigned to the plaintiff, Byrd, had no title to the land, and alleging fraud. The plaintiff replied, denying the truth of the matter pleaded, and the cause was continued. At the next term of the Circuit Court, the plaintiff asked and obtained leave to withdraw his replication to the two pleas, and then demurred to each of the pleas. The Circuit Court sustained the demurrers to those pleas, and gave judgment for the plaintiff, Byrd.

It is contended for the appellant, Buford, that the Circuit Court committed error in permitting Byrd, after the issues were made up, and after the lapse of a term, to withdraw his replications, and file demurrers to the pleas; and also that it erred in sustaining the demurrers to the pleas of a total failure of consideration.

The plaintiff's counsel relies on this provision in the statute, to-wit: the first and second sections of the sixth article of the act to regulate the Practice at Law, which provide that the court in which the action is pending may amend any pleading, &c., for the furtherance of justice, provided the adverse party be allowed an opportunity, according to the course and practice of the court, to answer the pleading so amended. Digest of 1835, p. 467. If those pleas tendered immaterial issues, the court committed no error in permitting the appellee, Byrd, to amend his pleading, by withdrawing the replications and filing demurrers; for the defendant, appellant here, could have gained nothing by getting a verdict on such issues.

The inquiry, then, will be, whether the demurrers were rightly sustained. The counsel for the appellant contend, that the demurrers were wrongfully sustained; for, say they, “although at common law one could not inquire into the consideration of a sealed instrument, or perhaps show that it had wholly failed, yet our statute (see Rev. Code, p. 359-60, § 7), has expressly subjected to this defense all actions founded on bonds or notes. This provision of our statute is general, and relates to all suits upon contracts before any justice of the peace or any Circuit Court, by appeal or otherwise, and gives the justice or the court the power to inquire into the consideration, or impeach the validity of the bond or note, and must have been overlooked by the court, in deciding the case of Burrows v. Atchison, 7 Mo. R. 424.”

The law referred to is the seventh section of the fifth article of the act to establish Justices' Courts, Digest of 1835, p. 359, and it reads thus: “On the trial of all suits upon contracts, before justices of the peace, or in any Circuit Court, by appeal or otherwise, whether brought by the original claimant, or any person for his use, or by the payee or obligee of any bond or note, it shall be the duty of the said justice or court to hear and determine such cause on its merits, and to hear parol or other legal evidence to impeach the validity or consideration of any bond or note; and if it shall be ascertained by the justice, or court, or verdict of the jury (if one be required), that the consideration of such bond or note has failed in whole or in part, judgment shall be given according to the finding of the justice, or court, or verdict of the jury, notwithstanding the defendant may hold a warranty or other instrument in writing on the payee or obligee of said bond or note, purporting to be an agreement to make good the consideration of said bond or note if the same should fail.”

Without going at all into the history of this provision of the law, it will suffice to say, that it is intended as an improvement on the act of 16th January, 1831, entitled, “An act supplementary to an act establishing Justices' Courts, and regulating proceedings in the collection of small debts.” Long before the passage of this act of 1831, an act had been passed to authorize either the plaintiff or defendant, before justices of the peace, to examine each other, and the Circuit Courts, without any provision to that purpose, allowed the same testimony on an appeal, lest a party who had gained a suit before the justice, on the evidence of his adversary, should lose it in the Circuit Court, on appeal, through defect of that evidence. And we find in this section above recited, from the Digest of 1835, that when an appeal from the justice's court has been taken in such a case, the same kind of testimony may be given in the Circuit Court by express statutory provisions. There can be little doubt that the act was first passed to meet cases of the character of Davis v. Cleaveland, 4 Mo. R. 206.

The counsel is quite mistaken in supposing that this court, in deciding the case of Burrows v. Alter, 7 Mo. R. 424, overlooked this law. It would be quite strange, indeed, if the Legislature were, in passing an act to regulate proceedings before justices of the peace, thus indirectly to make rules to govern the proceedings of the courts of record. The most careless perusal of the...