Cleaveland ex rel. Case v. Davis

• Decision Date: 30 April 1834
• Court: Missouri Supreme Court
• Parties: CLEAVELAND, TO USE OF CASE & MARKS, v. DAVIS.

3 Mo. 331

CLEAVELAND, TO USE OF CASE & MARKS,

v.DAVIS.

Supreme Court of Missouri.

April Term, 1834.

M'GIRK, C. J.

Cleaveland, to the use of Case & Marks, brought an action of debt on a bond, before a justice of the peace, where judgment was rendered for Davis. An appeal was taken to the Circuit Court. On the trial in the Circuit Court, the plaintiff gave his bond in evidence. The defendant then proved by John Chandler, that after the suit was brought Cleaveland told Chandler the bond sued on was given to secure the payment of the sum therein mentioned for a clock, sold by Cleaveland to Davis. This testimony was objected to by the plaintiff's counsel. The court permitted the testimony to go to the jury. The defendant gave in evidence a written agreement, not under seal, made by Cleaveland, of the same date of the bond sued on, to Davis, by which agreement Cleaveland acknowledged he had sold a clock to Davis, which he warranted to be a good time piece for two years, and if it should fail to be a good time piece, he promised to make it good by repairing it or putting another in its place. This paper was objected to as evidence, but admitted by the court. The defendant also proved that the clock ran about five months of the time, and then failed to run and keep time. There was no evidence that Cleaveland ever came to repair the clock, or that he put another in its place. On this state of testimony, the court instructed the jury that they must decide between the parties according to what “they might think was right and equitable.” The jury found a verdict for the defendant. A motion was made by the plaintiff for a new trial and overruled.

The first question to be considered is, did the court err in admitting Chandler's testimony? We are of opinion the court erred on this point. The record shows that before the suit was brought, Cleaveland had endorsed this bond away to Case & Marks.

The law is clear enough, that no admission made by a person after he has parted with his interest in a bond or note, can be received in evidence in prejudice of his assignee.^(a) This principle of law applies to this testimony. The testimony should have been excluded from the jury. When this evidence is excluded, there is no evidence to show that the consideration of the bond sued on, was the clock mentioned in Cleaveland's agreement of warranty. The error above is sufficient to reverse the judgment. There is, however, another point, on which the counsel on both sides are anxious to have an opinion; which point arises out of the instructions given by the court to the jury.

The instruction given was, that the jury should decide between the parties according to what they might think was right and equitable.^(b) To sustain the correctness of this instruction, Mr. Jamison for Davis, relies on an act of the General Assembly, passed 18th January, 1831, which act provides, that hereafter it shall and may be lawful for any justice of the peace within this State, when any cause is pending before him, to hear and determine all such actions according to equity and good conscience, in a summary way, &c., and it is hereby declared to be the duty of such justice to give judgment according to right and justice between the parties. The second section of the act provides, that when an appeal is taken to the Circuit Court, it shall give judgment and try the cause in the same way as above provided. Mr. Jamison contends that this act not only justifies the instruction the court gave, but also warranted the court in letting the unsealed instrument of Cleaveland go in evidence to show the consideration of the bond had failed.

Messrs. Chambers, Wells and Campbell contend on the other side, that this act can have no effect, without farther legislat...