Clark v. Rives

• Decision Date: 31 March 1863
• Parties: JAMES M. CLARK, Plaintiff in Error, v. THOMAS L. RIVES et al., Defendants in Error.
• Court: Missouri Supreme Court

33 Mo. 579

JAMES M. CLARK, Plaintiff in Error,

v.THOMAS L. RIVES et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1863.

Error to St. Louis Court of Common Pleas.

This is an action on the following agreements:

First agreement.--“We hereby agree and bind ourselves not to levy on or sell, or cause to be levied on or sold, any of James M. Clark's property, under a certain confession of judgment by him given us this 28th day of May, 1858, till the expiration of four months from date above, said confession of judgment having been given us to better secure the payment of his account, viz., three hundred and two dollars, more or less, four months from date; also, that we will not dispose of said judgment. St. Louis, 28th May, 1858. D'Oench & Rives.”

Second agreement.--“We hereby agree and bind ourselves not to levy on or sell any of Rush Heintzleman's or James M. Clark's property, or cause to be levied on same, under a certain confession of judgment by them to us given this day, 28th of May, 1858, till the expiration of four months from date, said judgment having been given to better secure the payment of their account, viz., six hundred and twenty dollars, more or less, four months from date, and also that we will not dispose of said confessions of said judgment. St. Louis, 28th of May, 1858. D'Oench & Rives.”

The case was submitted to the court below on the following agreed statement of facts:

“It is agreed that the plaintiff, being indebted to the defendants, in consideration of the agreement marked ‘A,’ (the first above,) executed by the defendants, as it purports, confessed a judgment in their favor in the Circuit Court of St. Louis county; that the plaintiff and one Rush Heintzleman, as partners in the retail drug business, were indebted to the defendants in their partnership name; that in consideration of the agreement marked ‘B,’ (the second above,) which was executed by the defendants, as it purports, and by them delivered to the plaintiff and Heintzleman, the plaintiff and said Heintzleman made a confession of judgment in favor of defendants for the amount of the firm's indebtedness to the defendants in the Circuit Court of St. Louis county; that in seven or eight days after said confessions of judgment were made and said agreements were executed by defendants, the plaintiff being temporarily absent from home, the said Heintzleman, his partner, without the knowledge or consent of plaintiff, gave to the defendants the order or release set out hereafter in the bill of exceptions; that upon this release the defendants caused executions to issue upon both confessions of judgment, and under said executions caused the whole of the partnership property of plaintiff and Heintzleman to be levied upon and sold without the knowledge of plaintiff, and the proceeds of the same to be appropriated to the payment of said executions.”

The release mentioned in the agreed statement does not appear to be copied into the bill of exceptions.

Upon this statement the court, by consent of parties, verbally instructed “that the plaintiff was not entitled to recover damages arising out of the sale of the partnership property under the executions named in the agreed case.”

The plaintiff took a nonsuit with leave to move to set the same aside.

Voorhis, for plaintiff in error.

I. The considerations for the agreements sued on were the confessions of judgment.

These agreements, the confessions, and the contracts sued on, raise mutual considerations and mutual obligations on all the parties.

Heintzleman, the partner of...