Edwards v. M'Kee

• Decision Date: 31 October 1821
• Citation: 1 Mo. 123
• Court: Missouri Supreme Court
• Parties: EDWARDS AND CRAVENS, ADM'R AND ADM'X, v. M'KEE.

1 Mo. 123

EDWARDS AND CRAVENS, ADM'R AND ADM'X,

v.M'KEE.

Supreme Court of Missouri.

October Term, 1821.

APPEAL FROM JEFFERSON CIRCUIT COURT.

M'GIRK, C. J.

This was an action of debt, brought to recover four hundred dollars. The first count is on simple contract, for goods sold and delivered. The second count is on a lost bond, for the same sum. The count states, that the bond was made in the year 1817, the month and day of the month, blank: the time of payment is 18 and blank, and the month and day of the month, blank.

The third count counts on a lost promissory note for the sum of $400, and refers to the second for the date and time of payment, by the words, year and day aforesaid. In the second and third counts, no profert is made, and the want of profert excused by alleging the writings were destroyed by time and accident. The breach states, that the money, although long due and payable, was not paid, &c. To the first count there is issue to the country, and a general demurrer to the second and third counts without oyer. The demurrer to these two counts were sustained, and a trial had on the first count.

On the trial of the cause, it was proved by plaintiff that sometime in the year of our Lord, 1817, as the defendant was returning home with sundry horses, six in number, including one colt, the defendant represented to a witness that he had purchased said horses, together with a wagon and gears, from Cravens, the intestate--that the terms on which he had purchased, were, that he was to keep the horses, wagon and gears until the Christmas next ensuing, at which time he had his election, either to return the said horses, wagon and gears to Cravens, or to keep them at the price of $400, to be paid by the 25th December, the next year: and that defendant said that he considered the contract advantageous, inasmuch as he was to have the privilege of paying the said sum of $400, or a part thereof, in hauling. It was also proved that before the time of this conversation, the horses, &c., were the property of Cravens, and that they were afterwards in the possession of M'Kee. and that M'Kee did not return them to Cravens, but kept them.

Upon this state of the case, the defendant's counsel moved the Court to instruct the jury, that if they found it was part of the contract of the sale and purchase of said horses, &c., that the defendant was to have the privilege of paying said sum of $400, or any part thereof, in hauling, they must find for defendant--which instruction was given (and excepted to).

The plaintiff's counsel then moved the Court to instruct the jury, that if they should find the sale of the said wagon, horses, &c., from evidence in the cause, independent of the declarations of the defendant, they were not bound to regard the said declarations as containing the terms of the said contract, any more than if the declaration had been adduced in evidence on the part of the defendant, which was by the Court refused: but the Court instructed the jury, the said declarations must be received by them, to have such weight with them as they should think them entitled to as evidence of the terms of the contract, the same having been adduced on the part of the plaintiff, which was also excepted to. The juryhaving found for the defendant, an appeal is taken to this Court.

The first question presenting itself in order, as it occurred in the progress of this cause, is, did the Circuit Court err in sustaining the demurrer to the second and third counts in the declaration? The first question urged at the bar, in support of the judgment of the Court, is, that the manner of stating the time of payment, date of writing, &c., is too uncertain. The Court will pass this question by, inasmuch as it is their opinion, an action at law cannot be maintained on a bond or note, which is said to be lost or destroyed by time and accident. Then, as to the main question made by the demurrer, can an action of debt for the recovery of the debt be maintained on a bond or note which is destroyed by time and accident?

It is an undoubted rule of the common law of England, that whenever any thing is claimed by a deed, profert of the deed mnst be made in pleading. To this rule, however, there are some exceptions; one is, where the deed has been pleaded in another Court and there remains. Another is, where the deed is in the possession of the adverse party; and in England, as Lord Kenyon says (3 T. Rep. 156), profert need not be made in the case of conveyances, operating under the statute of uses. And there may be other exceptions, but if there are, they are not at present recollected by the Court. If this case. then, does not come within some of the exceptions, profert should have been made of the deed. It is not pretended it does. Indeed, the law (as understood by Chief Baron Gilbert), is so strict on this subject, that profert will not be excused, even though the deed is proved to be burnt by fire. (See Gil. Evi. 97). It is admitted at the bar, that the law was so understood in England, until the decision made by the Court of King's Bench, in 1789 (3 T. R. 151); and it is thought that case has been a leading case on this point, in that country ever since. That case (the case of Read v. Brookman), wasan action of replevin and avowry of distress for rent. To the avowry there were several pleas in bar, and the fourth plea pleaded a release of the yearly rent forever, alleging the release was destroyed by time and accident, and made no profert of the deed of release. To this plea, a demurrer for want of profert. Lord Kenyon, in delivering his opinion, sets out by saying, if the objection prevail, it will be because the law is so written, and not that it is reasonable; but says, if there is a series of adjudged cases in favor of the objection it must prevail. It is to be observed that Lord Kenyon, in giving his opinion, goes almost entirely on the reason of the case, and thinks the objection unreasonable, and relies only on one adjudged case for his opinion, which is the case of Totty v. Nesbet, which appears...