Flournoy v. Andrews

• Decision Date: 30 April 1839
• Parties: FLOURNOY v. ANDREWS.
• Court: Missouri Supreme Court

5 Mo. 513

FLOURNOY

v.ANDREWS.

Supreme Court of Missouri.

April Term, 1839.

W. ADAMS, for Appellant. To reverse the judgment of the Circuit Court, the appellant relies upon the following points; 1. That the court erred in permitting Ross to testify. 2. That the court erred in overruling the motion for a new trial. See Butler v. Whitemore, 10 Mass. R. 442; Adams v. Bean, 12 Mass. R. 137; Moss v. Riddle & Co. 2 Cond. R., S. C. U. S. 277; Bowling and others v. United States, same book, 94.

JNO. G. MILLER, for Appellee. The counsel for defendant will insist upon the following points, which will meet the objections urged by plaintiff. 1. The court very properly permitted the defendant to file a new appeal bond, and allow the original one to be cancelled. The court did not err in admitting the testimony of Ross after the cancellation of said bond--see 2 Stark, title, “““Bail,” p. 139; 1 Tidd's Practice, 283; Jones v. Davis, 4 Mo. R. 28. 2. The court very properly gave the instructions asked for by the defendant.

NAPTON, J.

Flournoy sued Andrews before a justice of the peace and had judgment, from which Andrews appealed to the Circuit Court, with one Ross as security in his appeal bond. On the trial in the Circuit Court, Flournoy read in evidence the bond of Andrews, on which he had recovered before the justice, and there rested his case. The defendant (Andrews) then proved that the consideration of the bond sued on, was certain lumber furnished by plaintiff to one George C. Hartt. It was also in evidence that the defendant, before the bond was given, went to Hartt and informed him that Flournoy wanted security, and that Hartt replied, he would give none; that shortly after, without the knowledge of Hartt, plaintiff sent the bond (which was written as joint and several bonds usually are--“we, or either of us,” &c., and with two seals appended), by his clerk to the defendant for his signature, remarking that he would get Hartt to sign it, and that defendant accordingly signed it. It was also proved that plaintiff sent the bond to Hartt for his signature, and one witness stated that he understood from the conversation of the parties, that defendant was Hartt's security. It also appears, from the bill of exceptions, that, on the trial in the Circuit Court, the defendant offered one William C. Ross as a witness, who admitted himself to be the individual bound in the appeal bond with defendant, and who was therefore objected to by plaintiff as incompetent. Upon the motion of the defendant, the court ordered the appeal bond to be cancelled, and a new bond, with approved security, was given, and Ross was then admitted to testify. After the termination of the evidence, the court, at the instance of the plaintiff, instructed the jury, that the circumstance, that the consideration of the bond went to George C. Hartt, did not release the defendant from his liability on the bond. The court, also, at the instance of the defendant, instructed the jury, that if they believed from the evidence that it was the agreement and understanding of the parties, that the defendant should only sign the bond as security for Hartt, and that Hartt did not afterwards sign it, they must find for the...