Hanger v. Imboden
| Decision Date | 31 July 1848 |
| Citation | 12 Mo. 85 |
| Court | Missouri Supreme Court |
| Parties | HANGER v. IMBODEN. |
APPEAL FROM WASHINGTON CIRCUIT COURT.
FRISSELL, for Appellant.
1st. The court below erred in not excluding from the consideration of the jury all the parol testimony relative to the terms of the contract between Imboden and Hanger after their written contract was introduced. 2 Phillips on Ev. 551, note 422. 2nd. That there was no legal evidence in the court below that Imboden had contracted with the United States to carry the mail on route No. 3008, from Potosi to Van Buren. The paper introduced was at best a mere showing that the government was willing to contract with him for that purpose. If there was a contract this was not the best evidence of it. 2 Phillips on Ev. 550, note 421.3rd. It was not pretended that there was any ambiguity in the contract between Imboden and Hanger, nor was it pretended that there had been any alteration of the terms of the contract. That was the only contract that had ever existed relative to the matter of carrying the mail upon that route. 4th. The court erred in permitting the jury to take to their rooms when they retired to consider of their verdict the papers which had been offered in evidence. Harkley v. Hastie & Patrick, 3 Johns. 25; Smith v. Thompson, 1 Cowen, 221; Cornelius v. Grant & Abbott, 8 Mo. R. 64.
JOHNSON, for Appellee.
1st. It was not necessary that Imboden's contract with the post-office department should be signed by him. It was offered simply to show that Imboden had a contract for carrying the mail, the route, the compensation, &c. The department was bound by the signature of the postmaster-general and this was as far as the defendant was concerned. 2nd. The deposition of Hammond is conclusive in this case. The Circuit Court admitted it to be read after inspection. There was no evidence to show that it had been mutilated or altered. There is a natural commencement and the sense is clear. This was a matter for the Circuit Court alone to tetermine, and the original deposition is improperly here. Practice in Supreme Court, § 21, p. 904, Rev. Stat. of 1845. 3rd. The motion to exclude all parol evidence offered by the plaintiff was properly overruled. The written contract was offered in evidence by the defendants and not by the plaintiff, Besides, the parol evidence was proper to explain the ambiguity of the written contract. Phillips on Ev. 3 Hill & Cowen's Notes, 1358, 1361. 4th. The Circuit Court may permit jurors to take with them when they retire to consider of their verdict such papers given in evidence as may be useful to them in making up their verdict. Cornelius v. Grant, 8 Mo. R. 59; Graham's Pr. 274. 5th. When upon the whole record the judgment is for the right party it will not be reversed.
Benjamin Imboden brought an action of assumpsit in the Washington Circuit Court against Hanger, and having obtained judgment, Hanger moved for a new trial, which being refused, he excepted and appealed to this court. The action is founded on a contract between the parties by which Imboden who had a contract with the general post-office department for carrying the mail from Potosi, Mo., to Van Buren, Arkanses, for four years and a half, sub-let the same to Hanger at fifty dollars per year.
On the trial of the cause in the Circuit Court, the plaintiff read in evidence to the jury his contract with the post-office department, dated 18th October, 1837, and signed alone by postmaster-general, for carrying the mail on route No. 3008, for the sum of $595 per year, payable quarterly. The contract in evidence was objected to because it was not signed by Imboden; but the objection was overruled. Evidence was then given to prove the contract between the parties. Some of the witnesses stated that Hanger was to pay for the contract fifty dollars per year, others stated it was fifty-five, whilst others stated it to be fifty or fifty-five dollars for the whole term. It was in evidence that Hanger obtained a draft from the post-office department sent to Imboden, and that when the draft was sold Hanger paid Imboden $55 for the first year under the contract. It was further in evidence that the contract was worth $50 or $55 per year.
The defendant then offered in...
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