Craighead v. Wells

• Decision Date: 31 July 1855
• Citation: 21 Mo. 404
• Parties: CRAIGHEAD, Appellant, v. WELLS & NICKEL, Respondents.
• Court: Missouri Supreme Court

21 Mo. 404

CRAIGHEAD, Appellant,

v.WELLS & NICKEL, Respondents.

Supreme Court of Missouri.

July Term, 1855.

1. A case will not be reversed for the admission of evidence objected to, unless an exception is saved, nor for the admission of irrelevant evidence unless it was calculated to prejudice or mislead the jury.

2. In an action for the breach of a contract to work for a specified time in California, in consideration of an outfit furnished, evidence of the value of the outfit is properly excluded, as it cannot affect the measure of damages.

3. In such an action, a witness may be permitted to state what wages he received in California, as bearing upon the question of the value of labor there.

4. Rebutting evidence is that which directly impeaches or weakens that offered by the opposite party, and not that which is merely cumulative, or the proof of the same things already proved by another witness.

5. Infancy is a good defence to an action for the breach of a contract to work in California in consideration of an outfit furnished, although there has been no offer to return the outfit.

6. An instruction putting hypothetically to the jury facts of which there is no evidence, is erroneous.

7. A party's own acts and declarations are no evidence of his agency against the party for whom he assumes to act as principal.

Appeal from Callaway Circuit Court.

This was an action to recover damages for the alleged breach of an agreement under seal, by which the plaintiff contracted to furnish to the defendants “one wagon and team (in conjunction with Alfred Bowman, part of said wagon and team,) and provisions for an overland trip to California,” in consideration of which the defendants bound themselves, “jointly and severally, to pay to said Craighead the one-half of all the net profit that they may make from the first six months' work after they have gotten to work in the mines of California, or in other employment which they can make most profitable, counting the time so employed.”

The petition alleged that the plaintiff performed the agreement on his part, and in conjunction with Bowman, provided a good and suitable wagon and team, and provisions sufficient for an overland trip, with which the defendants and Bowman started for California; and assigned for breaches on the part of the defendants that they abandoned the trip before reaching California, and failed to work in the mines there or pursue any other profitable employment.

The defendants answered that the team furnished by the plaintiff was not suitable or sufficient, and was abandoned because unable to make the trip; and that they were driven from the team by Bowman, under whose exclusive control, as his agent, plaintiff had placed it. The defendant, Nickel, also relied upon infancy as a defence.

At the trial, the plaintiff offered evidence tending to show that the outfit furnished by him was entirely sufficient, and that the failure of the team was caused by the hard driving and ill usage of the defendants. Bowman, who was introduced as a witness for the plaintiff, testified that he owned one-fourth of the outfit, but was not the plaintiff's agent, and had no more control over it than the defendants. After the defendants left him at Fort Kearney, he joined another company, and left the wagon behind, but took the cattle with him to California. In answer to a question on cross-examination, if he did not draw a gun on one of the defendants, he admitted that he did. This evidence was objected to, but the record shows no exception saved. The plaintiff offered to prove by this witness the value of the outfit furnished by him, but the evidence was excluded, and an exception taken. One of the plaintiff's witnesses, in answer to a question on cross-examination, testified that he saw Bowman intoxicated on the road. This evidence was objected to as immaterial, but admitted, and an exception taken. The plaintiff also offered evidence tending to show the value of labor in California.

The defendants then offered evidence tending to show that the cattle furnished by plaintiff were not old and strong enough to make the trip; that Bowman was intemperate and abusive; that he exercised control over the team, declared that he was plaintiff's agent, and finally ordered defendants to leave. The record shows that the declarations of Bowman, as to his agency, were objected to, but does not show that any exception was taken to their admission. There was no other evidence of Bowman's agency. Ferre, a witness for defendants, was permitted to state what he got a day for working in California, to which plaintiff excepted. There was evidence that Nickel was a minor when the contract was made.

At the close of the testimony for the defendants, the plaintiff offered by way of rebuttal additional evidence as to the sufficiency of the outfit, but it was excluded, and he excepted.

The 2d instruction asked by plaintiff, and refused, was as follows:

2. The time when the defendants were required to work in the mines of California, or pursue some other profitable employment while there, is not to be taken or construed to be the first six months after they may have arrived in California; but the true meaning and construction of their contract is, that they should...