Greene v. Gallagher

• Decision Date: 31 October 1864
• Parties: GEORGE GREENE, Defendant in Error, v. MARTIN GALLAGHER, Plaintiff in Error.
• Court: Missouri Supreme Court

35 Mo. 226

GEORGE GREENE, Defendant in Error,

v.MARTIN GALLAGHER, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1864.

Error to St. Louis Circuit Court.

R. F. Wingate, for defendant in error.

C. D. Colman, for plaintiff in error.

BATES, Judge, delivered the opinion of the court.

This action was brought to recover as damages the value of several articles of personal property of the plaintiff, which came to the possession of the defendant, and which he refused to deliver to the plaintiff when requested. The answer denied the plaintiff's right to the property, and averred “that the goods and chattels aforesaid are the property of the estate of William Gallagher, deceased, intestate, whose widow and administratrix by her subsequent marriage with the plaintiff forfeited her letters of administration; that an administrator de bonis non had been since appointed, to whom the defendant had delivered the goods and chattels aforesaid as required by law, or if he hold them, or any part of them, holds as bailee of the said administrator.”

From the evidence given at the trial it appeared that the plaintiff had married the widow of William Gallagher, and they lived at the same place where said William had lived in his lifetime, and had there the property, the subject of dispute; some of which he had bought himself, some of which his wife had bought during her widowhood, and a few articles of inconsiderable value had been the property of William Gallagher, which were retained by the plaintiff's wife as widow of William Gallagher, deceased. The defendant, who was a son of William Gallagher, lived at the same place, and having a quarrel with the plaintiff, drove him away and refused to deliver to him the property.

During the progress of the trial the defendant offered to prove that the articles purchased by plaintiff's wife during her widowhood were purchased with money of the estate of William Gallagher, deceased. Upon objection of the plaintiff, the court excluded this evidence, with obvious propriety.

The defendant also offered to prove that the property bought and taken to the place by the plaintiff, was bought by the defendant and plaintiff as partners; which was excluded by the court with like propriety. The defendant had set up by his answer, that the whole of the property belonged to the estate of William Gallagher. The defendant then asked leave to amend his answer so as to set up that some of the property belonged to him and the plaintiff as partners. Leave to...