Hanley v. Blanton

• Decision Date: 30 April 1821
• Citation: 1 Mo. 49
• Parties: HANLEY v. BLANTON.
• Court: Missouri Supreme Court

1 Mo. 49

HANLEY

v.BLANTON.

Supreme Court of Missouri.

April Term, 1821.

ERROR FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

COOK, J.

This was an action of assumpsit by Robert Blanton against the plaintiff in error. On the trial, the plaintiff offered to read in evidence, the deposition of L. W. Boggs, which is set out at large in the bill of exceptions; and so far as it is made the subject of the assignment of errors, states, substantially, that in the spring of 1817, he delivered to Hanly, forty-nine barrels of whisky, containing upwards of 1,600 gallons, to be sold on commission, for Richard Blanton, and in May following, Hanly told him he had sold it for a dollar and twelve and a half cents per gallon; since which time, he, as agent of Blanton, had demanded the money of Hanly; that the whisky was consigned to L. W. Boggs & Co., composed of witness and Hanly; that witness was the acting partner of L. W. Boggs & Co., but received instructions from Richard Blanton to deliver the whisky to Hanly, which he did, and instructed him not to sell it for less than one dollar and twenty-five cents per gallon. Witness did not know whether Blanton knew that he continued a member of the firm of Boggs & Co., or not, yet the correspondence was carried on with Blanton in his individual name; that witness was instructed to deliver said whisky to Hanly before it arrived witness was not to have any part of the commission on the sale of said whisky; that, at the time the whisky was sold, Hanly had a mercantile establishment distinct from the concern of Boggs & Co. Defendant objected to the reading of this deposition, because Boggs was liable to Blanton, and because it proved the whisky to be the property of Richard Blanton, and not of Robert, the plaintiff. The Court overruled the objection of the defendant's counsel to the reading of the deposition, on the ground of the interest of the witness; and the plaintiffs then proved, “that before the commencement of said suit, L. W. Boggs, the agent, requested Joshua Barton, Esq., an attorney of that Court, to commence suit against said defendant, in the name of Richard Blanton, and gave him a written memorandum to that effect; and that, in the commencement of said suit, the attorney had used the name of Robert through mistake.” Whereupon the Court overruled the said objection of the defendant to the reading of said deposition, being of opinion, and declared it to the jury, that said plaintiff might recover upon the said testimony in that action: to which the defendant also excepted, and after verdict for the plaintiff, the defendant moved for a new trial. The errors assigned are, first, that the deposition of Lilburn W. Boggs was permitted to be read in evidence. Second, that evidence was admitted to prove that the plaintiff's true name was Richard, and that the name of Robert was used by mistake. Third, that the Court expressed an opinion on the sufficiency of the plaintiff's evidence. Fourth, the Court refused to grant a new trial. The first objection was predicated on the deposition of L. W. Boggs itself, which shows that the whisky, which is the subject matter of the action, was consigned to the company composed of the witness and defendant, and before the arrival of the boat, or vessel, he (the witness) was instructed individually to deliver it to Hanly to be sold on commission; that at the time of receiving the cargo, the company had one establishment, and Hanly another, in which Boggs & Co. were not interested, and that the witness was not entitled to any part of the commission upon the sales of the whisky. The Court see no reason for rejecting the evidence of Boggs, on the ground of interest.^(a) On the second point, the evidence is, that the transaction was with Richard, and not with Robert Blanton. That Richard is the person who brought the suit, and that the name of Robert was used through mistake of the attorney. There is no doubt in this case as to the person of the plaintiff; the only question is, whether the misnomer can be taken advantage of on the trial, or should be pleaded in abatement. This question seems to have been long since settled. In 1 Chitty's Plead., 440, it is said, “it was once doubted, if a mistake of the plaintiff's Christian or surname were not ground of non-suit, but it is now settled it must be pleaded in abatement.” In Comyn's Digest, (abatement,) it is also said that the defendant “shall plead misnomer of the plaintiff, if his Christian...