Garland v. Harrison

• Decision Date: 31 October 1852
• Citation: 17 Mo. 282
• Parties: GARLAND, Respondent, v. HARRISON, Appellant.
• Court: Missouri Supreme Court

17 Mo. 282

GARLAND, Respondent,

v.HARRISON, Appellant.

Supreme Court of Missouri.

October Term, 1852.

1. Where A. furnished money to B. with which to purchase a judgment on their joint account, and A. suffered B. to take the assignment in his own name, and B. afterwards assigned the judgment to C., who had no notice of A.'s claim, it was held, that C. could hold the money collected on the judgment, as against A.

2. The declarations of the assignor of a chose in action after assignment, are not admissible in evidence against his assignee

Appeal from St. Louis Circuit Court.

This was an action of assumpsit, begun by Garland against Harrison, March 9, 1849. The declaration contained the common counts, and one upon an account stated. The object of the suit was to recover one-half of the amount of a judgment rendered in the St. Louis Court of Common Pleas, October 22, 1847, in favor of Isaac S. Clark against Marshall C. Holliday. In support of his claim the plaintiff offered in evidence the following paper marked A., and proved the signature thereto of O. P. Crow:

“I acknowledge to have received from B. S. Garland, about the last of June last, or first of July instant, the sum of one hundred and fifty dollars, which was appropriated to the purchasing of a judgment from _______ Clark against Marshall C. Holliday, amounting to about seven hundred and fifty odd dollars, which judgment was purchased for the benefit of said Garland and myself, out of which each of us is entitled to one half when the same is collected. The sheriff of St. Louis county now holds the amount of said judgment in his hands, of funds belonging to said Holliday, which is to be applied to the judgment against said Holliday, purchased by me as aforesaid.”

“O. P. CROW.

August 2, 1845.”

The admission of this paper in evidence was objected to.

In the date of the above writing the word “July” seemed to have been originally written, and the word “August” to have been written over it. The judgment therein referred to was a judgment rendered in an attachment suit in the Callaway Circuit Court, an execution on which was then in the hands of the sheriff of St. Louis county. Afterwards, it appearing that the execution on the Callaway judgment was of no avail, as there had been no service on the defendant, a new suit, by attachment, was instituted in the St. Louis Court of Common Pleas upon the original demand. The money recovered in this last named suit was received by Harrison, and the plaintiff, Garland, seeks in this suit to recover one-half of it. Harrison claimed under an assignment from O. P. Crow, who claimed under an assignment from Clark.

In further support of his claim, Garland offered evidence to show that he was the active agent in prosecuting the suit in the St. Louis Court of Common Pleas, which was objected to, but admitted. He further offered to prove by Henry B. Belt, the statement of Crow, “just after he returned from up the country, where he went to buy the judgment,” that he (Crow) and Garland had purchased it together, which was also objected to, but admitted. B. B. Dayton, a witness, called by plaintiff, testified that he was employed by Harrison to bring the suit of Clark v. Holliday in the St. Louis Common Pleas; that Harrison and Crow came to his office together; that soon after the institution of the suit, Garland informed him that he had an interest in it, but he never knew the nature of his interest until the termination of the suit, when a dispute arose between Garland and Harrison as to the proceeds; that he paid them to Harrison, taking from him an indemnity; that Garland furnished information, procured witnesses, and otherwise assisted in the prosecution of the suit. All the evidence touching the acts of Crow, in the prosecution of the suit, was objected to.

At the close of the plaintiff's case, the defendant asked the following instructions, which were refused:

1. There is no evidence before the jury, that the plaintiff is entitled to any portion of the money received by Harrison, under the judgment rendered in the St. Louis Court of Common Pleas.

2. Upon the plaintiff's own showing, he is not entitled to recover in this case.

The defendant then offered to give in evidence the assignment from Crow to Harrison, written upon the back of a paper marked B., first proving the signature of Crow thereto. The paper marked B. is as follows:

“Know all men by these presents, that I, Isaac Clark, of the county of Callaway and state of Missouri, for and in consideration of the sum of five hundred dollars, duly paid, have sold, and by these presents, do assign, transfer and set over to O. P. Crow, of the county of St. Louis and state aforesaid, a certain judgment rendered on the nineteenth day of April, 1845, in the Callaway Circuit Court, in favor of Isaac Clark, and against Marshall C. Holliday, for seven hundred and twenty-six dollars damages, besides interest and costs, on which said judgment an execution was issued to the county of St. Louis, and is now in the hands of the sheriff of said county, returnable to the October term, 1845, of said Callaway Circuit Court. Given under my hand and seal, this thirtieth day of June, eighteen hundred and forty-five.

ISAAC S. CLARK. (seal.)

Test: A. G. Bennett.”

William H. Pritchartt, a witness for plaintiff, had previously stated, on cross-examination, that he drew this paper at the request of Garland; that he also drew the paper marked A., but he could not tell which was drawn first. From the language of paper A., he thought it must have been drawn first.

The body of the assignment from Crow to Harrison, written on the back of paper B., was admitted to be in Harrison's handwriting, and is as follows:

“For value received of James Harrison, I hereby assign and transfer to him the within mentioned judgment, and all my right, title and interest in the same, and all my right and interest under and by virtue of the within transfer.

O. P. CROW.

St. Louis, July 7, 1845.”

The court permitted the assignment from Crow to Harrison to be given in evidence, and permitted the defendant to read also, in connection therewith, that part of paper B., commencing with the words, “a certain judgment,” and ending with the words, “Callaway Circuit Court,” when they last occur in said paper; but refused to allow any other part of said paper B. to be given in evidence.

The court, upon its own motion, gave the following instruction to the jury:

The jury are instructed that, unless they shall be satisfied that the paper marked “A.” was delivered to and in the possession of the plaintiff at or previous to the institution of the suit in the Court of Common Pleas, in the name of Clark v. Holliday, the said paper must be altogether disregarded by the jury.

The court then, at the instance of the defendant, gave the following instructions to the jury:

1. If the jury find from the evidence, that the assignment, dated July 7th, 1845, from Crow to Harrison, is genuine, and was made in good faith on the part of Harrison, and for a valuable consideration from him to Crow, and that the assignment from Clark to Crow, therein referred to, was made in that shape, with the consent of Garland, the plaintiff is not entitled to recover in this case, unless the jury find from the evidence, that the receipt from Crow to Garland, given in evidence, was executed and delivered to Garland before said transfer to Harrison, and shall also find from the evidence that, before said assignment to Harrison, he had notice that Garland had furnished to Crow, as stated in said receipt, some portion of the money with which the claim therein mentioned was purchased from Clark.

2. If the jury believe from the evidence, that the assignment, dated July 7th, 1845, from Crow to Harrison, is genuine, and was made in good faith on the part of Harrison, for a valuable consideration...