Hall v. Hopkins

• Decision Date: 31 March 1851
• Citation: Hall v. Hopkins, 14 Mo. 450 (Mo. 1851)
• Parties: ELISHA HALL v. JOSEPH G. HOPKINS ET AL.
• Court: Missouri Supreme Court

14 Mo. 450

ELISHA HALL

v.JOSEPH G. HOPKINS ET AL.

Supreme Court of Missouri.

March Term, 1851.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

This was an action brought in the St. Louis Court of Common Pleas, by the defendant in error against the plaintiff in error, to recover the amount of a promissory note, dated September 26th, 1842, for $328 40, made by the plaintiff in error and payable to the defendants in error, by their partnership style of ““Hopkins & Co.” The suit was tried below, on the general issue. On the trial the note was read in evidence, and it was admitted that the plaintiffs below were partners, using the style of “Hopkins & Co.,” that the note was made in the State of New York, and that the legal rate of interest there was seven per cent.

The defendants below then read a number of depositions and other documents, and further testimony was given by the plaintiffs in reply, from all which the following state of facts appeared: Elisha Hall, the defendant below, was the owner of five hundred and thirty-nine and a half acres of land in the county of Chatauqua and State of New York, which was incumbered by a mortgage to the Holland Land Company, to secure $1,500 and interest. On the 14th day of August, 1840, Hall sold the said tract of land to Artemas S. Rogers, subject to the land company's mortgage. A part of the purchasemoney, amounting to $3,455 19, was unpaid, and Rogers gave Hall his bond, dated August 14th, 1840, in the penal sum of $5,000, to secure said sum of $3,455 19, to be paid to said Hall by installments, and also the payment by Rogers of the land company's mortgage. At the same time Rogers gave to Hall a mortgage deed of the said tract of land to secure the payment mentioned in the condition of the bond. In September, 1841, Rogers sold to William Clark two hundred and eighty-five and a half acres, being the south part of the forementioned land, who went into possession and made considerable improvements, costing, as Clark swore, about $1,000. During the years 1841-2, Rogers made some payments to Hall, by which the sum due on his bond and mortgage (exclusive of the land company's mortgage) was reduced to about $2,450. At the time when Hall gave Hopkins & Co. the note now in controversy (September 26th, 1842), he executed to them an assignment of so much of the Rogers bond and mortgage as should be sufficient to pay said note. The assignment was read in evidence, and contained this clause: “I do hereby make, constitute and appoint Albert Hazeltine my true and lawful attorney, irrevocable in my name or otherwise, to have, use and take all lawful ways and means for the recovery of so much of the money due upon said bond and mortgage as shall be sufficient to discharge said note.” On the 28th September, 1842, Hall made another assignment to Josiah Palmitu, writing that he owed Palmitu $55 77, and he assigned to him that sum out of the Rogers bond and mortgage, and appointed Hazeltine attorney to collect the same. Subsequently Hall made other assignments to other persons for various sums, all containing a like clause, appointing Hazeltine attorney, and all the assignments, subsequent to that to Hopkins & Co., refer to it as annexed, and all the assignments seem to have been contained in the same paper. None of the assignments, subsequent to that to Palmitu, recite any debt, and their consideration is expressed to be “for value received.”

For convenience, a tabular statement of all assignments, containing the names of the assignees and their respective debts and amounts, is subjoined:

Hawkins & Co.

September 26, 1842

$328 40

Josiah Palmitu

September 28, 1842

55 77

Perez Dewey

September 30, 1842

406 58

Ira Day

September 30, 1842

71 84

Elisha Mather

October 30, 1842

139 99

Stephen Mather

October 8, 1842

51 00

William Hall

October 10, 1842

363 40

Barrett & Butler

October 14, 1842

72 42

Hannah Foster

November 7, 1842

44 88

Seth Cheney

November 19, 1842

250 54

Samuel Hall

March 21, 1843

251 49

$2,036 31

In the fall of 1843, the Holland Land Company commenced proceedings to foreclose its mortgage extending over the whole tract. This mortgage then amounted to about $1,800. The assignees under Hall held a meeting, offered a treaty with Clark, and concluded an agreement, by which Clark was to pay off the Land Company mortgage, and his part of the land being 285 1/2 acres, was thereupon to be released from Rogers' mortgage. This agreement was read in evidence. It bore date December 22nd, 1843, and was signed by Abner Hazeltine, attorney for the assignees. It was in evidence that Hopkins & Co. expressly assented to this agreement, but there was no proof that Hall personally assented to, or knew of, the arrangement. The agreement was carried out by Clark. His part of the land was formally sold under the Land Company mortgage, and such an arrangement was made by him with the purchaser that the mortgagor was satisfied, and the north part released from the Land Company mortgage. In 1844 proceedings were commenced to foreclose the Rogers' mortgage as to the 249 acres, being the northern part of the whole tract. This suit was brought in the names of Elisha Hall and the several assignees under him above named. It did not appear, however, that Hall had any personal knowledge of the suit, and the reason why he was made a formal party, was explained by the attorney who conducted the suit. Before the sale was had under this foreclosure, the assignees suspected that the security had become scant, and they held another meeting to make a further arrangement. Hopkins & Co. insisted that they had a preference, by being the first assignees, and refused to go into an agreement with the other assignees. The result was that the other assignees appointed Perez Dewey their joint agent to purchase the land at the sale for their joint benefit. The agreement was reduced to writing, and signed by the several assignees. It bears date 27th March, 1845. The agreement does not speak of Dewey's purchasing the claim of Hopkins & Co., but the witness says such was the understanding, as a memorandum signed by Dewey at the foot of the agreement mentions the claim to Hopkins & Co., as included in his advances. On the same 27th of March, 1845, Hopkins & Co. assigned by their writing to Perez Dewey all their interest in the Rogers' mortgage, and all securities against Elisha Hall for the same demand.

The sale under the foreclosure of the Rogers' mortgage took place April 2nd, 1845, and Perez Dewey became the purchaser at the price of $2,090. At this time the several amounts, assigned by Hall with interest, came to about $2,375. No proof of the actual costs in the foreclosure proceedings was offered, but evidence was introduced that, in foreclosure cases in New York, the costs were ordinarily about $100. No proof was made as to the ultimate disposition of the land purchased by Dewey. Evidence was given on the trial, on behalf of the defendant, as to the value of the land released by Clark. It was admitted on all hands to be the most valuable part, comprising about 40 acres more in quantity and more considerable improvements. Anson Chamberlin, Samuel Barrett and William Hall (the last two being assignees), swore that the land was worth, during the years 1843-4, $12 per acre. No direct testimony as to the value of the land was produced on behalf of the plaintiffs. William Hall, in answer to a question by plaintiffs, stated that he did not consider the arrangement with Clark a beneficial one for the assignees; on the contrary, his motive in assenting to it was to favor Clark.

At the close of the testimony, the defendant below moved this instruction: “The jury is instructed that, as the note sued on appears from the plaintiff's evidence to have beeu assigned to Perez Dewey on the 27th of March, 1845, the plaintiffs are not entitled to recover in this action.” This instruction was refused and defendant excepted.

These instructions were then given for plaintiffs: 1. The transaction with William Clark, as detailed in the evidence, is no discharge of the defendant, if, under the circumstances, no greater amount of money would have been realized for the land released, than the amount due the assignees of the Holland Land Company on the prior mortgage. 2. The transaction mentioned in the first instruction is no discharge of defendant, if assented to by him or his authorized attorney, either before the agreement made or ratified afterwards. 3. Abner Hazeltine, under the evidence in the cause, and upon the true instruction of the several assignments of an interest in the Rogers' mortgage, was the attorney in fact of the defendant, and if the jury believe from the evidence that the arrangement made with Clark, and the subsequent agreement with the assignees, and the purchase of the premises for the benefit of all concerned, were all done in good faith, and with the advice and concurrence of said Abner Hazeltine, acting as defendant's attorney, the defendant cannot set up said matters in discharge of his liability. 4. The assignment of Hopkins & Co. being collateral, and the other assignments absolute, the subseques could compel Hopkins & Co. to exhaust their remedy on the note before taking their pay from the fund assigned; and if the jury believe that Perez Dewey, on behalf of himself and other assignees of portions of the Rogers' mortgage, have advanced the money to Hopkins & Co. for the note sued on, the present parties in interest succeed to all the rights and liabilities of Hopkins & Co., one of which is to collect the money on the note, and in case of a deficiency in the proceeds of the Rogers' mortgage, to pay all except Hopkins & Co., to be excluded from every participation in such proceeds, unless the note cannot be collected. If the note can be collected, that must be done; if it fail, then the party holding the lien has the right to be first paid. 5. That the assignment to Hopkins & Co. was prior in time, and first to be paid, does not aid the defendant or bar the...