Cato v. Hutson

• Decision Date: 31 August 1841
• Citation: 7 Mo. 142
• Parties: CATO, A MAN OF COLOR, v. HUTSON.
• Court: Missouri Supreme Court

7 Mo. 142

CATO, A MAN OF COLOR,

v.HUTSON.

Supreme Court of Missouri.

August Term, 1841.

ERROR FROM THE CIRCUIT COURT OF COLE COUNTY.

HAYDEN, for Plaintiff. 1st. The court erred in not sustaining the defendant's motion to quash the original writ. 2nd. The court erred in not permitting the defendant to prove that the matter of difference involved in the suit had been decided and settled by the arbitrators selected by the parties, as proposed to be proved by defendant. 3rd. The court erred in refusing to give the several instructions to the jury as asked for by defendant. 4th. The court erred in giving the instructions which it did give to the jury. 5th. The court erred in overruling the defendant's motion for a new trial.

MILLER, for Defendant. 1st. The court very properly overruled the defendant's motion to quash and dismiss the writ. See 1 Tidd, 687; Chitty's Pl. 279, 282; 3 Caine's R. 219; King v. Shakspeare, 10 East, 83. The misspelling of the two names is not material, as they are of the same sound. 2nd. The court very properly sustained plaintiff's objection to the introduction of proof of any arbitration or settlement between the parties after defendant had pleaded and issue joined. See 2 Tidd, 900, and notes; 7 Johns. 194, Jackson on Demise; Calden v. Rich, 2 Esp. R. 504. After plea and issue joined, matter of defense arising subsequently, must be pleaded, and cannot be given in evidence, unless so pleaded. 1 Chitty, 697. 3rd. The court very properly overruled the motion to instruct the jury as asked for by defendant, and did not err in instructions given. See 3 Starkie, 1046, and notes. The bill of exceptions does not show that there was no other proof. Foster and Foster v. Nowlin, 4 Mo. R. 18. Parol proof of the agency of Yount is admissible, and the bet was made by Yount, as agent; principal may sue. See 11 Johns. 23, Vescher v. Yates. Any agreement between plaintiff and others after bet made, as to a participation in the bet, will not prevent plaintiff from recovery. See 13 Johns. 88. 4th. That the court very properly overruled defendant's motion for a new trial.

TOMPKINS, J.

Hutson sued Cato in the Circuit Court, where he obtained a judgment against him, to reverse which Cato comes into this court. It appears on the record, that on the rturn of the writ the defendant below moved the court to quash the same, because in the declaration the plaintiff called himself Hudson, whereas the writ required the defendant to answer Hutson. This motion was overruled, and the defendant pleaded and went to trial. The plaintiff in the Circuit Court gave oral testimony conducing to prove that he had made a bet of three hundred and fifty dollars, with one Yount, on a horse race. He also gave evidence to prove that Yount made the bet with the plaintiff for and on behalf of Cato, the defendant, in the name of him, the said Yount. It was also proved that about three weeks after the making of the wager by Hutson with Yount, that he admitted, as associates, two men, to-wit: one Taylor and one Anderson, who deposited their respective portions with the stakeholder, but there was no communication on the subject between Yount and these associates of Hutson. The stakeholder testified, that Hutson and Yount placed in his hands an instrument of writing in these words: “Memorandum of a race to be run on the Marion track, on the 13th day of May next, in Cole county, Missouri, is this, that Joseph Yount agrees to run Cato's sorrel mare against Isaac Hutson's bay horse, for the sum of three hundred and fifty dollars, and there is now in the hands of John Scruggs fifty dollars a side, for a forfeit, &c. Given under our hands, & c., this 11th March, 1837.” Signed by Isaac Hutson and Joseph Yount. It was proved that the race was won by Yount, and that the stakeholder, by Yount's direction, paid over to Cato the sum of money put into his hands by Hutson and his partners. The plaintiff in error, defendant in the Circuit Court, offered to prove that since the filing of the plea in this cause the whole matter was submitted to arbitration, and that the arbitrators made their award in favor of the plaintiff in error. The court excluded this evidence, and the defendant excepted. The defendant then prayed the court to give the following instructions, viz: 1st. If they believed that the said Taylor, Anderson and Hutson, agreed to join their funds together, and that the same should be bet by the plaintiff for them, with the defendant, and that the said plaintiff did bet the same accordingly, and that the same was won by the said defendant and received by him, that then the action should have been brought by the said Anderson, Taylor and Hutson, jointly, for the money so won, and that the plaintiff could not recover in the present action. 2nd. If they believed that the bet was made by the plaintiff and Yount, and won by Yount, yet, although the money might have been paid over to the defendant, the plaintiff could not maintain his action against Cato, the defendant, for such money, but must seek redress against Yount, with whom the bet was made. 3rd. That the jury ought to disregard all parol evidence given in the case as to the person with whom the plaintiff made the bet, and be governed, as to their finding, by the bond made by Hutson and Yount, and which had been read to them. 4th. If they believed that the plaintiff bet but one hundred and twenty-five dollars, then he had no right to recover more than that sum. The Circuit Court refused to give these instructions, and gave the following, viz: 1st. If they believe that the plaintiff made the bet of three hundred and fifty dollars with the defendant, and after having made the bet, the said Taylor and Anderson agreed with him to become associated with him, there being no communication between Cato and the said Taylor and Anderson, and advanced to the stakeholder, Scruggs--the said Taylor, one hundred dollars, and the said Anderson, one hundred and twenty-five dollars, part and parcel of the said sum of three hundred and fifty dollars, that then the plaintiff had a right to recover of the defendant the whole sum of three hundred and fifty dollars. 2nd. If they believe that the said Yount made the said bet for Cato, and was the agent of Cato in making the same, although it was made in the name of Yount, it was the bet of Cato, and they ought to find accordingly. The defendant excepted to the several opinions of the Circuit Court, both in the refusing the instructions asked, and in giving those not asked by him. The defendant then moved for a new trial, because: 1st. The...