Finney v. Brant

• Decision Date: 31 October 1853
• Citation: 19 Mo. 42
• Parties: FINNEY, Respondent, v. BRANT, Appellant.
• Court: Missouri Supreme Court

19 Mo. 42

FINNEY, Respondent,

v.BRANT, Appellant.

Supreme Court of Missouri.

October Term, 1853.

1. All cases originating in the St. Louis Court of Common Pleas, where there has been twenty days' personal service, are triable at the first term, notwithstanding the new code of practice.

2. Where several parties interested in resisting a suit, appointed a committee of their number to employ counsel and conduct the defence, and agreed in writing to pay to the committee such pro rata assessments as might be made against them to defray the expenses of the defence, and one of the parties to the agreement failed to pay the amount assessed against him, which was thereupon made up by the committee, it was held, that each member of the committee might sue separately for the amount paid by him.

3. In such a case the statute of limitation only begins to run, at the date of the payment of the last assessment.

4. A suit brought by a member of the committee to recover back the amount paid by him, will not be defeated by the mere fact that it was actually paid by a firm to which he belonged (he alone being a party to the agreement), unless it appears that the money belonged to the firm, and was not paid on his account.

Appeal from St. Louis Court of Common Pleas.

John O'Fallon, J. B. Brant, J. G. Lindell, John Finney, Isaac Walker and many others united in the defence of suits brought to recover a tract of land known as the Clamorgan arpent, in which they were severally interested, and entered into the written agreement which is set out in the opinion of the court, by which the five persons named above were appointed agents to manage and conduct the defence, with power to appoint any of the other parties to the agreement to fill vacan cies that might occur in their number from death, resignation or otherwise. The parties to this instrument agreed to pay “to the agents or their successors” such amounts as might be assessed from time to time to defray the expenses of the defence, in proportion to the value of their several interests, which was to be ascertained from the county assessment for the time being. O'Fallon and Brant refused to act on the committee to conduct the defence, and Solomon H. Robbins and Peter Lindell were substituted in their stead. The committee, in 1846, employed counsel to defend the two suits which had been brought, one in the St. Louis Court of Common Pleas, and the other in the United States Circuit Court for the Missouri district, and agreed to pay them a fee of $2,000 each, one-half of which was payable in six months and the remainder upon the final determination of either of said suits, either in the United States Circuit Court or in the Supreme Court of Missouri. An assessment was made against each of the signers of the agreement for his proportionate share of the counsel fees, and a draft was drawn by the committee in favor of each of the counsel upon each of the parties to the agreement, payable in instalments, as the fees became due. This assessment was made upon the basis of the valuation in the county assessment of 1845. Brant refused to accept the draft drawn upon him for his share of the counsel fees, and they were paid by the committee, each member paying separate sums, at different times. This suit was brought by John Finney in 1853, to recover back the amount thus paid by him for Brant. Some of the payments were made by Finney in 1846, and others in 1852, as they became due by the terms of the draft and of the agreement by which the counsel were employed.

It appeared in evidence that two of the sums included in the amount sued for were actually paid by J. & W. Finney, a firm composed of the plaintiff and William Finney; but it did not appear that they were not paid with the money or on account of John Finney, who was the only member of the firm liable under the agreement.

The cause was called for trial in the Court of Common Pleas at the first term. The defendant applied for a continuance, on the ground that it was not triable at that term, but there having been personal service on the defendant twenty days before the commencement of the term, his application was overruled. There was a judgment for the plaintiff and the defendant appealed.

Dayton and Shepley, for appellant.

1. The court below erred in refusing to continue the cause, and forcing the defendant to trial at the return term. New Code, art. 17, sec. 2 2. Under the pleadings and proof, the plaintiff was not entitled to recover. A joint action should have been brought by the agents to whom Brant agreed to pay the assessments made upon him. His contract was with the agents as a body, and his responsibility was to them collectively. 3. The plaintiff was barred by the statute of limitations from recovering the money paid in 1846. R. C. 1835, p. 716, tit. “Limitations,” art. 2. sec. 2; Ang. on Lim. (2d ed.) p. 135, 136, and notes; 4 McCord (S. C.) 210; 6 T. R. 189-94; 1 Barn. & Adolph. 15.

Barton Bates, for respondent.

1. It is of no importance that a portion of the money was paid by J. & W. Finney. John Finney was the agent and committee-man, and as such, under obligation to pay. His obligation was met, and it is entirely immaterial whether it was paid by his own hand, or by the hand of another. 2. The statute of limitations does not apply. The whole proceeding is under a special written contract, whereby an agency was created to carry on a complicated and continuing business. It is precisely like a running account, the last item of which being in time saves all. This suit is properly brought in the name of Finney alone. It is not brought upon Brant's covenant to pay the calls, but upon the implied assumpsit for money paid for his use. This court has decided that a joint suit could not be brought, and the defendant, having had the benefit of that decision, now insists that separate suits cannot be brought.

RYLAND, Judge, delivered the opinion of the court.

1. The appellant contends, that the court below erred in refusing to continue the case, and in ordering the same to be tried at the first term. This was a suit in the Court of Common Pleas. When the Court of Common Pleas was first established, the ninth section of the act declared “that all cases originating in said Court of Common Pleas. when the process shall have been personally served on the defendant fifteen days before the commencement of the term, &c., shall be heard at the first term. unless good cause for a continuance be shown.” Acts of 1840-41, p. 51. “The practice, process and proceedings of the court shall be the same, in all respects, as is or may be provided by law for the Circuit Court, except as herein otherwise specially provided.” Sec. 8 same act. In the Revised Code of 1845, the time, instead of being fifteen days service before next term, is increased to twenty days service, and this is the only difference between the 9th section of the act of 1840 and '41, creating the court, and the 9th section of the revised act of 1844-45, chap. 42, tit. Common Pleas Court of St Louis county. The 8th section of the act of 1844-45 is the same as the act of 1840-41. Now the special provision mentioned in these two sections, in regard to the practice, process and proceedings, takes the service of process from without the operation of the general law, when the suit is brought in the Common Pleas Court, and we must look to the time of service mentioned in the act concerning the Common Pleas. If, then, the service has been twenty days before the term, the first term is the trial term. We consider the practice act of 1849 does not repeal the provisions of the acts concerning service, in the cases originating in the Common Pleas, and that the refusal of the court to continue...