Cochrane v. Stewart

• Decision Date: 31 October 1876
• Citation: 63 Mo. 424
• Parties: THOS. N. COCHRANE, et al., Plaintiffs in Error, v. WM. H. STEWART, et al., Defendants in Error.
• Court: Missouri Supreme Court

63 Mo. 424

THOS. N. COCHRANE, et al., Plaintiffs in Error,

v.WM. H. STEWART, et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Jackson County Circuit Court.

Ermine Case, for Plaintiffs in Error.

The words of the obligations, include “every indebtedness” of Stewart & Hartt, (in that particular business) to plaintiffs. The doctrine of ejusdem generis does not limit the full meaning of such phrase as above, when the debts are of one special class. (City of St. Louis vs. Laughlin, 49 Mo. 559; Littlefield vs. Winslow, 19 Me. 394; Foster vs. Blount, 18 Ala. 689; Grumley vs. Webb, 44 Mo. 458.)

Pratt, Brumback & Ferrey, for Plaintiffs in Error, cited in argument: Blair vs. Perpetual Ins. Co., 10 Mo. 566; 2 Pars. Cont. [5 ed.] ch. 1, p. 499, § 3, and note and cases cited as to construction of contracts; Schulenburg vs. Magwire, 42 Mo. 391; Grumley vs. Webb, 44 Mo. 444, 456, 457; St. Louis vs. Laughlin, 49 Mo. 559; 2 Pars. Contr. [5 ed.] p. 502, and note and cases cited; Lacke vs. McVeam, 3 Cent. Law Jour. 609; Rogers vs. Gosnell, 51 Mo. 466; S. C., 58 Mo. 589, and cases cited; Manney vs. Frazier's Adm'r, 27 Mo. 419; Page vs. Becker, 31 Mo. 468; Whelan vs. Whelan, 3 Cow. 578, and cases cited; Burress vs. Blair, 61 Mo. 133; Koehring vs. Muemminghoff, 61 Mo. 407; Ins. Co. vs. Seminary, 52 Mo. 480-91; Cathcart vs. Foulke, 13 Mo. 567, 568; Clarkson vs. Morrison's Adm'r, 24 Mo. 138.

NAPTON, Judge, delivered the opinion of the court.

This suit was upon a bond executed by Stewart & Hartt, as principals, and George W. Ten and William T. Little, as securities, to the plaintiffs, Cochran and Brown. The bond is dated April 5, 1871.

The condition of the obligation is, that if Stewart & Hartt “shall well and truly keep and perform in all respects, according to its true intent and meaning, their part of the agreement on which this obligation is indorsed, executed between themselves and said Cochran and Brown, dated the 14th day of March, 1871, and shall well and truly pay, or cause to be paid, any and every indebtedness and liability now existing, or which may hereafter in any manner exist, or be incurred, on the part of said Stewart & Hartt to the said Cochran & Brown, whether said indebtedness or liability shall exist in the shape of notes, book accounts, renewals, or extension of notes or accounts, or acceptances, or indorsements or otherwise, etc., then this obligation to be void, but otherwise to remain in full force and effect.”

The bond is signed by Stewart and Hartt and Ten and Little.

The agreement of March 14, 1871, between Cochran & Brown and Stewart & Hartt, referred to in this obligation, sets out that Cochran & Brown, of St. Louis, are general agents of the Howe sewing machine, and have granted to Stewart & Hartt the right to sell in a certain territory, comprising the counties of Jackson, Cass, etc., in Missouri, and some counties in Kansas, named, and proceeds to state the terms on which this arrangement is based, as to prices, etc., which have no bearing on the question raised; and provides “that the said Stewart & Hartt shall well and truly pay, or cause to be paid, without any relief from valuation or appraisement law, any and every indebtedness or liability which may be created or incurred on their part to the said Cochran & Brown by reason of the premises above named, whether such indebtedness or liability shall exist in the shape of book accounts, notes, renewals, or extensions of notes or accounts, acceptances, indorsements or otherwise, together with attorneys' fees, etc.”

Previous to this, on March 9, 1871, Stewart & Hartt had entered into the following obligation:

“Kansas City, Mo., March 9, 1871.

We, the undersigned, hereby agree to meet all obligations of Stewart & Humphrey, accrued by them during the partnership in the sale of the Howe sewing machine, up to this date, including shipments of machines from Omaha, Nebr.-- shipments dated as follows: March 3, March 4, March 6, 1871.

WILL. H. STEWART,

PHILLIP HARTT.”

It seems that Humphrey had sold out to Hartt, and the new firm of Stewart & Hartt had agreed to liquidate the debts of the old firm. This contract was made with Humphrey.

The notes sued on in the case were given by Stewart and Humphrey to plaintiffs, for goods subsequently transferred to Stewart and Hartt, and the only question in the case is, whether the obligors, two of whom were securities on the bond of April 5, are responsible for the notes of the firm of Stewart and Humphreys--whether this...