Foster v. McO'Blenis

• Decision Date: 31 March 1853
• Citation: 18 Mo. 88
• Parties: FOSTER, Respondent, v. MCO'BLENIS & MATTHEWS, Appellants.
• Court: Missouri Supreme Court

18 Mo. 88

FOSTER, Respondent,

v.MCO'BLENIS & MATTHEWS, Appellants.

Supreme Court of Missouri.

March Term, 1853.

1. A verbal agreement not thereafter to run carriages on a particular route is not void by the statute of frauds, as a contract not to be performed within one year from the making thereof. The statute does not apply to contracts which may be performed within one year.

2. Where a judge permitted a deposition, parts of which had been ruled out, to be sent out to a jury after they had retired to make up their verdict, but accompanied it with an instruction that the parts ruled out were not evidence for any purpose, the Supreme Court refused to disturb the judgment, no exceptions having been taken, and it not appearing that the testimony ruled out, was calculated to prejudice the jury; but intimated that it was not a proper practice.

3. A party who contracts not to run omnibusses on a particular route, cannot evade his contract by associating others with him, and running them under the name of a new firm.

4. Nor is it any justification that the party who bought him off, so as to get a monoply of the route, did not furnish carriages enough for the commodation of the public. This only goes to the measure of damages.

Appeal from St. Louis Court of Common Pleas.

This was an action brought by Eli Foster, in 1851, against the appellants, to recover damages. The petition stated that in the year, 1849, the plaintiff was engaged in running a line of omnibus carriages in the city of St. Louis, on Morgan street from Broadway to the western limits of the city and thence to the Prairie House, on the St. Charles road, and that the defendants agreed that if plaintiff would withdraw his carriages from that portion of the route between Broadway and the city limits, and cease to run them there, they would pay him two hundred dollars, and would not run any of their carriages for the transportation of persons and property west of the city limits; that, in accordance with this agreement, plaintiff had withdrawn his omnibusses from that portion of the route between Broadway and the city limits, and had ceased to run them there, but that notwithstanding, the defendants had, at various times since then, run their omnibusses for the transportation of persons and property on that part of the route west of the city limits, thereby realizing large sums of money, to the damage of the plaintiff to the amount of one thousand dollars.

A demurrer to this petition was overruled. The defendants then answered, denying the contract, and further alleging that the plaintiff had not discontinued running his carriages between Broadway and the city limits.

At the trial, the plaintiff introduced evidence tending to prove a verbal contract, and evidence tending to show the violation of it by the defendants as charged in the petition.

The defendants offered evidence to show that the plaintiff did not provide carriages enough to accommodate all the passengers on his end of the route. It was also shown that the omnibusses which ran on the plaintiff's end of the route, belonged to the firm of Case & Co., which was composed of the defendants and Case & Wells. It appeared that after the date of the contract, the plaintiff continued to run on the eastern end of the route, until defendants got ready to put their carriages on.

The defendants asked the court to instruct the jury that the contract was void under the statute of frauds, unless it was in writing or was to be performed within one year, which instruction the court refused to give. The record contains a large number of instructions upon the facts in evidence, but does not show which were given and which refused, nor which were excepted to.

After the jury retired, they sent into court for the deposition of Isaac J. Foster, which had been read in evidence, portions of which had been ruled out by the court, and excluded from the jury. The court sent the deposition out to the jury, accompanied by this instruction: “The jury are instructed that so much of the deposition of Issac J. Foster as is marked “ruled out,” and which was excluded from the jury, is no evidence for any purpose whatever in this case--the parts excluded being those on the fifth and sixth pages of said deposition, which are marked in the margin “ruled out,” and which are also crossed.”

There was a verdict and judgment for the plaintiff for one hundred dollars from which the defendants appealed.

Leslie & Barrets, for appellants.

I. The contract was void because it was not to be performed within one year from the making thereof. (R. C. 1845, p. 530, sec. 5.) Under the statute, it must be shown affirmatively that the contract was to be performed within a year.

II. The court had no right to send to the jury the evidence adduced on the trial. After their retirement, all examination of the evidence by them is ex parte, dangerous to the rights of the parties, and unprecedented as a rule of practice. There would be as much propriety in sending out witnesses to be examined by them, as in sending out depositions.

III. There was error in the giving and refusing of instructions.

Todd & Krum, for respondent.

I. The statute of frauds only applies to agreements which, by express stipulation, are not to be performed within one year. (2 Kent, 510; 10 Wend. 426; 12 Conn. 455.)

II. It was within...