Ensworth v. Barton

• Decision Date: 31 May 1875
• Citation: 60 Mo. 511
• Parties: SAMUEL ENSWORTH, Respondent, v. GUY C. BARTON, Appellant.
• Court: Missouri Supreme Court

60 Mo. 511

SAMUEL ENSWORTH, Respondent,

v.GUY C. BARTON, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Buchanan Circuit Court.

W. H. Sherman, for Appellant.

I. Plaintiff brought his suit in trover, and recovered judgment upon a special contract. This cannot be done, even under the generous rules of practice provided by the code. (Wagn. Stat., 1058; Harris vs. Han. & St. Jo. R. R. Co., 37 Mo., 307; Robinson vs. Rice, 20 Mo., 229; Beck vs. Ferrara, 19 Mo., 30; Duncan vs. Fisher, 18 Mo., 403; Link vs. Vaughn, 17 Mo., 585; Ransom vs. Wetmore, 39 Barb., 104; 1 Chitty's Pl., 154.)

A. H. Vories, for Respondent.

I. As the case was tried by the court and developed by the testimony, the only question involved was, whether the defendant had received any money for the use and benefit of plaintiff, and if so, how much. And if under that view there was either evidence offered, or instructions given or refused, on any other theory they were wholly immaterial to such issue, and this court will not reverse when substantial justice has been done between the parties. (Rapp vs. Vogel, 45 Mo., 524; Rowell vs. City of St. Louis, 50 Mo., 92; Harris vs. Hays, 53 Mo., 90; State vs. Bailey, 57 Mo., 131.)

NAPTON, Judge, delivered the opinion of the court.

The petition in this case was as follows: Plaintiff states, that in the year 1866, on or about that time, the firm of Farris & Short executed their note payable to Thomas D. Mackay or order, for about $900, with interest from date, in consideration of their indebtedness to him. The exact date, amount thereof, or time of payment, or rate per cent. interest, is not known to plaintiff, as he never saw the note. He further states that after said note became due, to-wit: the last of the year 1866, the said Mackay sold said note to plaintiff, for a valuable consideration. He further states that said Mackay sent said note to the firm of Woolworth & Barton (defendant being one of said firm) for collection, who received the same; that said firm was advised and notified that said note was the property of plaintiff, and that they were to account to him for said note or its proceeds. He further states that when said note was so sent to the firm of Woolworth & Barton, there was due on said note upwards of $1,000. He further states, that in the spring of 1869, he made of the defendant and Woolworth a demand, and they refused and failed to deliver the note to plaintiff. He also demanded of them the proceeds of said note, if collected, which they refused to account for, denying that they had collected the same. He further states that said note bore interest, as he has been informed, at the rate of 18 per cent. per annum, and said note was made in the State of Kansas, where such interest was by law legal. The plaintiff further states, that defendant and his partner, in a settlement of their transactions with the firm of Farris & Short, before said demand, used said note and obtained a credit for the same in said settlement, and converted it to their own use. Wherefore he prays judgment for the amount of said note and interest, in the way of damages.

To this petition there was an answer, denying every allegation, and setting up the statute of limitations of five years as a bar.

A replication was filed, stating that defendant, before the expiration of the five years, left the State and has never returned.

The facts in the case, which the plaintiff's evidence tended to establish, and which under instructions from the court, the verdict of the jury may be regarded as finding, were about these:

From 1862 to 1869, the house of Woolworth & Barton was engaged in a general freighting business on the plains. In 1865 or 1866, the firm of Farris & Short was engaged in the same trade. Farris & Short bought of Mackay a large number of cattle for freighting purposes, and paid him for them, excepting the sum of $700 or $800, for which they gave their note. Farris & Short were unsuccessful, and failed. The firm of Woolworth & Barton had advanced largely to them. It was agreed among the creditors of Farris & Short, that the cattle, mules and wagons and other property of said firm, should be turned over or assigned to Woolworth & Barton, who would sell them and apply the proceeds to a pro rata payment of their creditors. This is the tendency of plaintiff's proof, though Woolworth & Barton deny that they were to pay anything to the creditors of Farris & Short, until they had sold enough to satisfy their own claims. However this may be, and upon this point the evidence was irreconcilable, it is clear that the case which the plaintiff, by evidence, sought to make out, was based on an alleged failure of defendant to account to him for his share of the proceeds of property...