Clemens v. Collins

• Decision Date: 31 March 1851
• Citation: 14 Mo. 604
• Parties: JAMES CLEMENS, JR., v. ELIZABETH W. COLLINS.
• Court: Missouri Supreme Court

14 Mo. 604

JAMES CLEMENS, JR.,

v.ELIZABETH W. COLLINS.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

GAMBLE & BATES, for Plaintiff.

I. A new trial ought to have been granted because the verdict is against law in this: 1st. The right of action at all, in such cases, is given by the statute, and is contingent in its creation, depending upon the performance of a certain precedent, that is, due diligence on the part of the holder, as against all parties and funds primarily liable. This appears to be settled in Collins v. Warburton, 3 Mo. R. 202; and Delaney's Ex'r v. Kerr, 10 Mo. R. 553. In this phase of the case, there is no necessity to inquire how much the party might have gotten by his activity. The case cited turned only upon the question of diligence. Diligence was a prerequisite to the right of action. In this case, the holder of the note did not exhibit the claims at all against the estate of John Kerr, deceased, and refused, though urgently requested, to exhibit it against the trust fund. The suit brought against Augustus Kerr, was improperly brought and delayed in judgment. And yet, it appears in the record (in the deed of assignment) that Augustus Kerr had individual estate not conveyed to the trustee, which, for aught that appears may have been misapplied during the delay caused by the error in bringing the suit. As to the assigned fund, it was the duty of the holder not only to exhibit his claim there, but to see that the trustee did his duty in regard to the fund. Diligence embraces skill as well as time. 2nd. It was against law also, in this (beyond the instruction prayed by the defendant) that the holder was bound to prove the assigned fund whether much or little could be obtained from it. When this case was up before, this court determined that it was her duty to pursue that fund, and so no action accrued against the assignor. It is not that the assignor is seeking to cast off an action fixed upon him, but the right of action never existed.

II. The verdict is against the instructions, and, 1st, the verdict is upon all three counts, whereas the second instruction required the jury to say on which count they find for the plaintiff. This might be very important to the defendant, because we think, confidently, that some of the counts (if not all) are bad. 2nd, the third instruction is directly violated by the verdict. If it be law, as decided heretofore in this case, that the party must pursue the assigned fund, then it is obvious that the requirements of law were not fulfilled. 3rd the 4th instruction is also violated by the verdict, for it is apparent that the holder refused to exhibit and prosecute the note against the trust fund; and that if she had done so, she might have obtained a considerable sum of money. The refusal, on request, to present the note against the assigned fund is an oppression and fraud upon Clemens. While he is sought to be held liable as assignor, he is obstinately denied all chance of indemnity.

III. The two instructions given for plaintiff, were both erroneous, and, 1st, the first (3rd as asked by plaintiff) goes only on the ground of the insolvency of the firm, and the members of it living and dead; and omits entirely the assigned fund, and for that reason is wrong. It is also wrong, as tending to mislead the jury, and we believe did mislead them, by the phrase general verdict, which made them disregard the second instruction given for the defendant. Whereas the term general verdict, is legally used only in contradistinction to special verdict. It does not mean merely a verdict upon all the counts of a declaration, which may be either general or special. 2nd. The second instruction (the 7th as asked) is also erroneous, because there is no count in the declaration which makes mention of the assigned fund, or of any diligence to get the money out of it.

LESLIE, LORD & HAIGHT, for Defendants. 1st. That the jury passed upon the whole matter, under the law laid down by the court as asked for by the plaintiff in error, and their verdict will not be disturbed by this court. 2nd. A large discretion rests with the judge who tries the case in the court below, and he having expressed himself satisfied with the verdict, this court ought to let it stand: Graham on New Trials, 405. 3rd. The jury by their verdict found the truth of every fact alleged in all the counts in the declaration, and the judgment is in accordance with the finding. The opinion of this court in this same case, 11 Mo. R. 320, is relied upon to sustain this verdict: Also case of Mullen v. Pryor, 12 Mo. R. 307. As to Mr. Bates' notion of the liability of an assignor of a non-negotiable note, see Story on Notes, § 473, p. 587. Our statute has not created the liability of the assignor, it has modified it. At common law, Mr. Clemens, the plaintiff in error, under the circumstances of this case, became an absolute guarantor of the payment of the note: See Story, § 473, cited above.

Additional: Recurrence to the evidence in the record will show that the court and jury kept within the rule of this court, as laid down in the cases of Clemens v. Collins, 11 Mo. R. 320; Ricketson & Holt v. Wood & Co., 10 Mo. R. 547.

RYLAND, J.

This case has been once before this court, and was reversed and remanded, a trial was again had and judgment rendered for the plaintiff, the present appellee. The case is reported in 11 Mo. R. 320. It was reversed as appears from the reported decision on account of an instruction given by the court below for the plaintiff. This instruction was not asked for nor was any similar instruction given for plaintiff on the second trial.

We shall again state the material facts of this case, and also insert the instructions given, as they appear by the record and proceedings now before this court.

The facts have been so et down in the statement made by Mr. Lord, one of the counsel for the appellee, that we shall copy his statement substantially. “This was an action brought by Elizabeth W. Collins against James Clemens, Jr., as assignee of a non-negotiable note. The declaration contained three counts. The first count alleged that John Kerr and Augustus Kerr, on the 4th day of November, 1843, made their promissory note, and thereby promised to pay James Clemens or order, $3,230 56 with interest at ten per cent. six months after date, and that said note was duly assigned to Elizabeth W. Collins. That at the maturity of said note, John Kerr was deceased, and his estate insolvent, and continued so insolvent up to the time of the commencement of this suit, &c. That suit was brought against Augustus Kerr at the next term of the court, after said note matured, and prosecuted to final judgment, and execution sued out thereon and returned nulla bona. The second count alleged that John Kerr and Augustus Kerr, partners in business under the name of J. & A. Kerr, on the 4th day of November, 1843, made their note payable to James Clemens, Jr., or order, for the sum of $3,230 56, six months after date, with interest at ten per cent, &c. That said note was duly assigned to said Elizabeth W. Collins, that at the maturity of said note, John Kerr was dead, and his estate insolvent, &c. That suit was brought by said Elizabeth W. Collins, against Augustus Kerr, as surviving partner of J. & A. Kerr, at the next term of the court after said note matured prosecuted to final judgment, and execution sued out thereon against said Augustus Kerr as surviving partner of said J. & A. Kerr, which was returned nulla bona. The third count set forth that John Kerr and Augustus Kerr during the life-time of said John Kerr, partners, doing business under the name of J. & A. Kerr, on the 4th day of November, 1843, made their certain promissory note in writing and thereby promised to pay to the order of James Clemens, Jr., the sum of $3,230 56, with interest at ten per cent. six months after date. That said note was duly assigned by said Clemens to Elizabeth W. Collins; that at the maturity of said note, John Kerr was deceased, and his estate so insolvent that a suit would have been unavailing, &c. That said Augustus Kerr, when the said note became due, was insolvent and continued so insolvent up to the time of the commencement of this su--that a suit would have been unavailing,” &c. Plea, general issue. Upon the trial of the case, the note and protest and assignment on the back of note was read. Record of Common Pleas, of judgment of Elizabeth W. Collins v. Augustus Kerr, survivor of firm of J. & A. Kerr read, showing that suit was commenced against Kerr at September term of Common Pleas, in 1844, the...