Burd v. Ross

• Decision Date: 31 October 1851
• Parties: BURD ET AL. v. ROSS.
• Court: Missouri Supreme Court

15 Mo. 254

BURD ET AL.

v.ROSS.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

This was assumpsit in the St. Louis Court of Common Pleas, by respondent against appellants, to recover from them the amount of a certain promissory note for $140 60, executed by William G. Ross, as alleged to have been paid through mistake, in the settlement of an account between W. G. & J. W. Ross and Burd, Rucker & Co., as part of the indebtedness of said W. G. & J. W. Ross. The declaration contained common counts in the usual form. Suit was brought on the 26th day of May, 1849, and, at the appearance term, defendants filed the plea of the general issue. On the trial the jury found the issue for the plaintiff, whereupon the defendants filed a motion for a new trial, assigning the ordinary reasons, which the court overruled, and defendants excepted. On the trial the plaintiff offered to read in evidence the deposition of Joseph R. Ross, to which defendants objected, on the ground that it was illegal and incompetent, because the deponent was interested in the case, and otherwise incompetent. The court overruled the objection and allowed the deposition to be read, to which defendants excepted. Proof was given by the plaintiff, through the deposition of Joseph R. Ross, that at the time the said note bore date, W. G. & J. W. Ross were not in business together; that their co-partnership was formed some time subsequent to said date; and that their firm was dissolved some time previous to the payment of said note. That Joseph R. Ross, in the absence of plaintiff, paid, as his agent, said note, and with plaintiff's money, supposing it to be the debt of W. G. & J. W. Ross, together with an account against said firm, in which it was included as an item; and the plaintiff, when he learned of the payment of the same, dissented therefrom. Proof was given by defendants, that the note in controversy was executed for merchandise sold and delivered by the defendants to the promisors therein. That said account was shown to plaintiff's agent, aforesaid, at the time of the payment thereof, and that said note was an item included therein; and that the said note itself was given up to the said agent of the plaintiff by the defendants, at the time of the payment of the account in which a copy thereof was included as an item. At the close of the testimony, the defendants prayed the following instructions: 1. If jury find from the evidence, that when Joseph A. Ross paid to defendant, Rucker, the amount of $225 50, he knew that the note of William G. Ross to Burd, Rucker & Co., constituted a part of said amount, the plaintiff ought not to recover. 2. Even though the jurors should find from the evidence, that Joseph R. Ross, when he paid defendant Rucker the amount of $225 30, did not know that the note of William G. Ross constituted a part of said amount, yet, if they find that he did not know that fact, because of gross negligence, they will find for the defendants. 3. If the jury find that the note of William G. Ross to Burd, Rucker & Co., constituted an item in the account paid to defendant Rucker by Joseph R. Ross, and that said note was given up to said Joseph R. by said Rucker, at the same time with said account, the jurors are authorized to consider these facts as evidence of gross negligence. The court gave the first two instructions prayed for, and refused the third, and defendants excepted. Defendants' motion for a new trial having been overruled, and exceptions taken, they have brought the case to this court.

POLK, for Appellants. 1. The deposition of Joseph R. Ross ought to have been excluded from the jury. The witness was interested. The loss for which respondent sued, occurred through the act and negligence of the witness; and unless the plaintiffs recovered against the respondent, he would have recourse against the witness. So that the witness must have become liable to the respondent immediately upon failure of the suit against appellants. The witness, therefore, had a direct and immediate interest in sustaining the plaintiffs' suit. 2. The Common Pleas erred in refusing defendants' instruction. That instruction, it will be observed, does not ask the court to tell the jury that the facts it embodies, constitute gross negligence, or, even, that they are conclusive proof of such negligence, but only that they are evidence; that is, some evidence of such negligence. Now, I submit, that with no propriety can it be denied that they tried to prove such negligence, that they are evidence of it.

FREEMON & REBER, for Respondent. I. The question as to the competency of the witness, Joseph R. Ross, the admission of whose testimony is the first error assigned by the appellants, does not arise on the record, because the admission of his deposition is not assigned as a reason in the motion for a new trial. Floersh v. The Bank, 10 Mo. R. 515; Gordon v. Gordon, 13 Mo. R. 215. But if the question was properly raised, the witness had no direct, disqualifying interest in the suit. Franklin Bank v. Freemon, 16 Pick. 535; Bent v. Baker, 3 Term R. 27; Smith v. Prayer, 7 Term R. 61; Todd v. Boone County, 8 Mo. R. 435. 3. Even though the witness were interested, still he was competent, ex necessitate. United States Bank v. Stearns, 15 Wend. 314; 2 Esp. 509; 1 Strange, 647; Baker v. McCrea, 3 Campbell, 144; Fisher v. Willard, 13 Mass. R. 379; 1 Cow. & Hill's Notes, 97; 1 Greenl. Ev. 485; United States Bank v. Johnson, 5 Martin's La. R. 310. II. The only question arising on the record, is, as to the action of the court in refusing to give the third instruction asked by the defendants (appellants here). That instruction was properly refused, because: 1. It was not warranted by the evidence, and could only mislead the jury. Coupled with the second instruction, it told them, in effect, to find for the defendants, if they found that the note of William G. Ross, constituted part of the account, paid by the witness, and that it was...