Glasgow v. Switzer

• Decision Date: 31 March 1849
• Parties: WILLIAM GLASGOW, JR., v. A. G. & W. N. SWITZER.
• Court: Missouri Supreme Court

12 Mo. 395

WILLIAM GLASGOW, JR.,

v.A. G. & W. N. SWITZER.

Supreme Court of Missouri.

March Term, 1849.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

This is an action of assumpsit, by the Switzers against Glasgow, on a bill of exchange for $2,050, dated at Fayette, Mo., July 18, 1846, payable at four months in St. Louis, and on the acceptance thereof by Glasgow. The bill was drawn in favor of Isaac Skinner, and appears on the back to have been indorsed by Skinner, in full, to the Switzers. Other indorsements appear on the back of the bill, viz: “Pay H. Shurlds, Esq. Cas. or order,” with the names below ““Willian C. Boon, Cas.” “A. G. Switzer & Co.,” and crossed as here done. And it was shown by the testimony of a credible witness, that the indorsement of Skinner was filled up after the bill was put into the hands of an attorney for suit, and that the crossing of the other indorsements was done at or about the same time. The indorsement by Skinner was proved only by the affidavit of one Smith, which affidavit was objected to by defendant as not admissible testimony, but was admitted by the court and excepted to. On the day on which the cause was set for trial, but before it was called for trial, the defendant exhibited his petition for discovery according to the statute, which is preserved in the record. The court disallowed the petition on the sole ground that it was presented too late, and not for any deficiency in the body and substance thereof; and the defendant excepted thereto. At the trial the defendant moved the four following instructions, all of which were refused and exceptions taken, to-wit: 1st. If the jury believe from the testimony that A. G. Switzer & Co, indorsed said bill to Henry Shurlds, Cas., and that the same has not been re-transferred to them, the jury ought to find for the defendant. 2nd. If the jury believe from the testimony that the plaintiffs and William C. Boon directed the contents to be paid to another party, the plaintiffs ought not to recover in this action, without showing to the jury how they subsequently acquired title to the bill. 3rd. There is no evidence before the jury that the bill in question was ever deposited for collection in the Bank of the State of Missouri. 4th. It is for the jury to determine whether or not the indorsement of A. G. Switzer & Co. on the bill is a blank or a full indorsement, and this they ought to do by inspecting the indorsements, and by such other testimony as is befere them. A verdict was then found for the plaintiffs. The defendant moved for a new trial, which motion was overruled and exceptions taken.

GAMBLE & BATES, for Plaintiff.

1st. The court below ought not to have disallowed the bill of discovery on the ground of time only, and because it came too late. It is not subject to the mere discretion of the court. It is plain statutory right, and the law that gives it fixes no time for its exercise. Rev. Code, Practice at Law, art. 4. § 12; 3 Mo. R. 453; 4. Mo. R. 267. 2nd. The affidavit of Smith (to prove the indorsement by Skinner) was incompetent, and ought to have been rejected. Acts of 1847, p. 109. 3rd. The court erred in refusing the instructions moved for, and especially the fourth. By refusing the fourth instruction the court takes upon itself to decide as matter of law what is obviously a matter of fact for the consideration of the jury: that is whether an indorsement on a bill is full or blank. 9 Mo. R. 710.

CROCKETT & WHITTLESEY, for Defendants. That the court below committed no error. The first indorsement was in blank, and was filled up for the purpose of the suit by the counsel employed by the plaintiffs, and they were at liberty to strike out any subsequent indorsement, whether blank or special. The petition for discovery was rightly refused, because it came too late; there was a witness who could have proved the same facts; no sufficient diligence was shown, and the defense set up was not available under the issue. 1 Dal. 193; 3 Wash. C. C. R. 404; 18 Johns. 230; Chit. Blacks. 257, 4 Esp. 120; 11 Mo. R. 619; 8 Mo. R. 443, 569; 3 Wheat. 172; 3 Mo. R. 453; 4 Mo. R. 269; 7 Mo. R. 6, 25; 8 Mo. R. 686; 5 Mo. R. 504; Story's Eq. Pl. 319; 1 Johns. Ch. R. 543; 4 Johns. Ch. R. 409; 7 Mo. R. 273; 16 Peters, 1; 3 Burr. 1664.

NAPTON, J.

It appears that on the day for which this case was set for trial in the Court of Common Pleas, the defendant presented to the court a petition for a discovery of testimony from the plaintiffs. The object of the bill of discovery was to establish that the bill sued on had been drawn by Beasley in bad faith to pay a debt due the plaintiffs; that he had no authority to draw upon the defendants except to meet liabilities incurred upon a special agreement between Beasley and the defendants for the purchase of tobacco; that the bill was accepted by James Glasgow, as the agent of defendant, under the belief that the bill was drawn to meet such liabilities for tobacco, and that the plaintiffs were aware of these facts. To excuse his delay in presenting this petition, the defendant stated that he had mistaken the court in which the action was pending; that he had suits in both the Circuit Court and Common Pleas, and supposed the suit to be pending in the former, whose sessions would not commence until some time after this application. The Court of Common Pleas refused to grant the discovery sought, on the ground that the application came too late, and the defendant took his exception.

The statute which authorizes bills of discovery in suits at law does not prescribe the time within which they shall be presented, nor does it appear that the Court of Common Pleas in St. Louis, had any rule upon the subject. That there must be a period in the progress of a cause when such applications ought not, upon general principles, to be allowed, is conceded. This court held in Price v. Connor, 3 Mo. R. 453, that such applications came too late after the...