Collier v. Swinney

• Decision Date: 31 July 1850
• Citation: 13 Mo. 477
• Parties: COLLIER v. SWINNEY.
• Court: Missouri Supreme Court

13 Mo. 477

COLLIER

v.SWINNEY.

Supreme Court of Missouri.

July Term, 1850.

APPEAL FROM SALINE CIRCUIT COURT.

DAVIS & CLARK, for Appellant. 1. The testimony of D. C. Garth does substantially support the declaration, and the proof in relation to Collier paying the boat $2 50 per hogshead for shipping the tobacco in the warehouse at Glasgow, was a contract independent of the contract declared on. See 1 Chitty, 333, 344. 2. The testimony of Homrickhouse, in the deposition, sustains the count in the declaration as declared on, substantially; it being apparent in the whole deposition that the witness uses the terms 31st August and 1st September indiscriminately with reference to the time when the contract was to terminate. 3. The discretion of the court was not soundly exercised in refusing to let the case proceed when the testimony of Homrickhouse, in the second deposition offered, was discovered. The court could see that Collier had a just cause of action; that delay was injurious to him, and that to proceed with the cause at that time, could work no surprise on Swinney. To exercise discretion soundly, it should be done in furtherance of the ends of justice.

LEONARD, for Appellee. 1. The contract as proved by Garth, varied from the contract alleged in the consideration for the promise, the freight to be paid, one being for $2 per hogshead for all, and the other being for $2 50 for all then delivered, and $2 for what should be afterwards delivered, and less if other beats carried for less. Chit Pl. 320, 321, 325, 326, 329, 334. 2. The contract, as proved by Homrickhouse, varied from the contract alleged in the thing promised to be done. The contract alleged is to carry out all the tobacco that should be delivered at Glasgow on or before the 1st day of September, 1846. The contract proved by Homrickhouse is “to take out the tobacco until the 31st of August, 1846.” Chitty's Pl. 329, 331, 334, 337, 341; Stone v. Knowlton, 3 Wend. R. 374, 376; Penny v. Porter, 2 East, 2. 3. The refusal of the court to cancel the order for the non-suit, was a matter within the discretion of the Circuit Court, and not subject to the control of this court. 4. If, however, this be otherwise, the presumption is that the Circuit Court exercised its discretion correctly, and there is nothing here to show it otherwise.

BIRCH, J.

The declaration in this case was an assumpsit, upon an undertaking of the steamer Wapello, of which the defendant below was part owner, to transport tobacco from Glasgow to St. Louis; the injury complained of being the omission of the boat to carry it according to the undertaking. The declaration contained three counts. The first one charges that the plaintiff agreed to send to St. Louis all the tobacco, in hogsheads, that he should be able thereafter to deliver at Glasgow, on or before the first day of September, 1846, and that in consideration thereof, and the further consideration of two dollars per hogshead, the defendant agreed to transport it. The count then alleges that the...