Conran v. Sellew

• Decision Date: 31 March 1859
• Citation: 28 Mo. 320
• Parties: CONRAN, Respondent, v. SELLEW et al., Appellants.
• Court: Missouri Supreme Court

28 Mo. 320

CONRAN, Respondent,

v.SELLEW et al., Appellants.

Supreme Court of Missouri.

March Term, 1859.

1. The issues of fact in an action brought to obtain the surrender and cancellation of a promissory note must be tried by the court, unless the court takes the opinion of a jury upon some specific question of fact involved therein, by an issue made up for that purpose. (R. C. 1855, p. 1261, § 13.)

2. Where the trial must be by the court, instructions or declarations of law in the form of instructions are not required, and if given will not be reviewed or noticed by the supreme court.

Appeal from St. Louis Court of Common Pleas.

Plaintiff alleges in his petition that on the 28th of October, 1854, he executed his promissory note to C. E. Labeaume for $416.25, payable sixty days after date; that this note was endorsed by said Labeaume and by A. & A. Wood & Co.; that said note while the property of A. & A. Wood & Co. was by said firm deposited with Sellew & Co. as collateral security for a sum of money borrowed by said A. & A. Wood & Co. of Sellew & Co.; that afterwards the money for which the note was deposited as a security was fully paid and A. & A. Wood & Co. became entitled to the return of said note, and said Sellew agreed to return the same, but failed to do so; that while the note was thus in the possession of said Sellew, plaintiff paid the full amount thereof to A. & A. Wood & Co., and said firm gave to the plaintiff an order in writing on Sellew & Co. requesting the delivery of said note to plaintiff; that this order was presented to Sellew coupled with a demand for said note; that Sellew refused to deliver up said note, &c. Plaintiff prayed that defendants might be required by decree of court to surrender up said note to plaintiff to the end that the same might be cancelled, and also prayed damages for its detention.

The cause was tried by the court without a jury. The court gave instructions prayed by plaintiff and refused others asked by defendants. The court decreed that the note should be surrendered up to plaintiff.

Gray, for appellants.

I. If plaintiff's note was pledged for the $300 borrowed money and that had been paid, still Sellew & Co. were equitably entitled to retain plaintiff's note for the unpaid balance of the $1,000 draft. No right of action accrued to plaintiff. A. & A. Wood & Co. were alone in privity with Sellew & Co. In a suit by A. & A. Wood & Co., Sellew & Co. could have set off the balance due them. Sellew & Co. could set up their claim against Conran, assignee of A. & A. Wood & Co. The first and second instructions asked by defendants should have been given. Conran could only sue as assignee, and the order did not amount to an assignment. It did not purport to be an assignment; besides, it was made by one partner more than two years after the dissolution. The fourth instruction should have been given. A. Wood and Meyers, who testified for plaintiff, were in the position of assignors of the right of action, and were incompetent to testify about any facts occurring before the assignment, the order of June 29, 1857.

Grover, for respo...