David F. Goodfellow's Ex'rs v. Meegan

• Decision Date: 31 March 1862
• Citation: 32 Mo. 280
• Parties: DAVID F. GOODFELLOW'S EXECUTORS, Respondents, v. JAMES MEEGAN, Appellant.
• Court: Missouri Supreme Court

32 Mo. 280

DAVID F. GOODFELLOW'S EXECUTORS, Respondents,

v.JAMES MEEGAN, Appellant.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Law Commissioner's Court.

On the 12th of May, 1859, two suits were brought against James Meegan, before Peter W. Johnstone, a justice of the peace; one in favor of David F. Goodfellow's executors, for thirty-five dollars and forty-five cents, for grazing oxen from July 28, 1858, to September 18, 1858; and the other suit was in favor of Mary G. Goodfellow, for eleven dollars and fifty-five cents, for grazing oxen from September 18, 1858, to October 21, 1858. James Meegan filed before the said justice an offset in each case--in the first suit as above, for seventy dollars, being the alleged value of two oxen, delivered to said Goodfellow in his life-time, which said Goodfellow was to pasture and redeliver to said Meegan, but which were not returned, though demanded; and in the last named suit, an offset for thirty-five dollars, for one ox lost and not returned or accounted for of oxen mentioned in plaintiff's account. By agreement of all the parties, the two cases were consolidated and merged into one. The case was tried before the justice, and judgment rendered against James Meegan for forty-seven dollars. James Meegan appealed to the Law Commissioner's Court, where the case was tried at the August term, 1859, and resulted in a judgment against said Meegan for thirty-five dollars and forty-five cents.

David F. Goodfellow died September 18, 1858, leaving a last will and testament, in and by virtue of which he appointed John W. Burd and William C. Jamison his executors and devisees, and bequeathed all his property to said Burd and Jamison as trustees, for the benefit of his widow, the said Mary G. Goodfellow, during her natural life, with remainder to his children. After his death, his widow continued to reside and carry on the farm, in the county of St. Louis, about six miles from this city.

There was evidence proving plaintiff's case.

The defendant attempted to show a special contract between Goodfellow and Meegan, made on his behalf by one James A. Husbands, who testified that Goodfellow told witness that he had two pastures; and showed one, on the left hand side of the road, where Goodfellow said he would pasture at the owner's risk; but that if witness would put the cattle in the pasture on the right hand side, he, Goodfellow, would see that the cattle were there whenever they should be called for. Witness understood that if the cattle were lost or stolen, Goodfellow would pay for them, but did not know what was Goodfellow's understanding. The price to be paid for pasturing was two dollars a head a month. It appeared that three of the oxen broke down the fence and got away.

In rebuttal, Michael Redman, a witness for plaintiff, was called and asked the following questions: What the custom was in regard to pasturing cattle in the vicinity where these cattle were pastured; and who usually took, according to custom, the responsibility of keeping the cattle safely? Whether the person pasturing ever undertook to do it? To which defendant objected, on the ground that a special contract had been proved; which objection was overruled, to which defendant excepted. Witness stated that, in the neighborhood, it was not the custom of pasturers to become responsible for cattle; that he never knew of cattle being pastured in that way, at the rate of two dollars a head per month, in that vicinity. Witness was then asked whether the cattle in question were not breachy, and other questions to the same effect, to which defendant objected as incompetent in view of the contract proved by defendant. The court overruled the same, to which defendant excepted. Witness then testified that some of the cattle were breachy; that he saw two of them, on two occasions, break down the fence of the pasture, and that he called any cattle breachy that would break down any fence.

The defendant asked the following instructions:

1. That if the court, sitting as a jury, believe this was a common contract of pasturage, with no special understanding as to the safe keeping, then this is an ordinary contract of bailment for hire, and Goodfellow was, by law, bound to ordinary care, and liable for ordinary negligence. And if the court, sitting as a jury, believe that the cattle were lost during the bailment, then, as plaintiffs sue for the price of the bailment, they are bound to show, before they can recover, that the lost cattle could not have been preserved by the exercise of ordinary care and diligence.

2. That if the court, sitting as a jury, believe that it was agreed between Goodfellow and ...