Hays v. Bell

• Decision Date: 31 July 1852
• Parties: HAYS, Plaintiff in Error, v. BELL and WILLIAMS, Defendants in Error.
• Court: Missouri Supreme Court

16 Mo. 496

HAYS, Plaintiff in Error,

v.BELL and WILLIAMS, Defendants in Error.

Supreme Court of Missouri.

July Term, 1852.

1. If there is any evidence, however slight, it is error for a court to tell a jury there is none.

2. It is error for a court to give instructions to a jury which are supported by no evidence.

Error to Howard Circuit Court.

Prewitt and Henry, for plaintiff in error, insisted that, admitting the allegations in defendants' answer to be true, plaintiff was entitled to a judgment for the principal of his debt; and cited Connor v. Hackley, 2 Met. 613; Bradley v. Covel, 4 Cow. 349; 5 N. H. 294; 15 Johns. Rep. 505; 5 T. R. 471; Selwin N. P. 1118; 4 Bingham, 309; 5 id. 132. No new contract was proved. A verdict will not be sustained where there was no evidence to support it, or where the jury could not have found it, without assuming a principle against the law. Todd v. Boone Co., 8 Mo. 431.

Clark, for defendants in error, cited 12 Mo. Rep. 194; Oldham v. Henderson, 4 Mo. 301; Mulliken v. Greer, 5 Mo. 493; Lackey v. Lane & McCabe, 7 Mo. 220; Dooley & Kirkland v. Jennings, 6 Mo. 61.

RYLAND, Judge, delivered the opinion of the court.

The following is the statement of the facts of this case, which I embody as part of my opinion, in order that the points decided may be properly understood.

Hays sued Bell and Williams in the Howard Circuit Court, on a bond for $750, dated 13th April, 1841, and bearing ten per cent. per annum interest from date, given to Irvin W. Hays, endorsed by him in blank, and on the 25th October, 1849, endorsed by William B. Hays to plaintiff.

Plaintiff's petition alleges that Irvin Hays endorsed and delivered said bond to William B. Hays, who, on the 25th October, 1849, endorsed and delivered it to plaintiff, and that said bond, and ten per cent. per annum interest thereon, are due him.

Defendants' answer alleges that they borrowed the money of Irvin and William B. Hays, and that, at the same time, defendant, Williams, delivered to them a negro man, named Peyton, to be kept by them for twelve months, for the interest of said money for that time; that he and they, under the name of “I. W. Hays & Brothers,” entered into a written agreement to that effect; that the slave remained in their possession from then until the 26th October, 1849; that the slave was worth at least one hundred and fifty dollars per year, and would have hired for that sum; that after the first year, defendants were entitled to receive a credit on said note, for each year, for the worth of said negro's hire, and that Irvin and William B. Hays were the owners of the bond until the 25th day of October, 1849, the date of William Hays' assignment to plaintiff.

On the trial plaintiff read in evidence the bond and endorsements, and defendants then proved, by William Herriford, that Irvin Hays signed the agreement referred to in defendants' answer, and that witness attested it.

“$750.

CHARITON, April 13th, 1841.

Twelve months after date, with interest at the rate of ten per cent. per annum from date until paid, I, William Williams, as principal, John M. Bell and William Feazel securities, agree to pay Irvin W. Hays the sum of seven hundred and fifty dollars, for value received.

WM. WILLIAMS,

(Seal.)

JNO. M. BELL,

(Seal.)

WM. M. FEAZEL.”

(Seal.)

The following endorsements appear on the back of said bond:

“IRVIN W. HAYS.

For value received, I assign the within note over to Marion W. Hays, without defalcation or discount, this October 25th, 1849.

WM. B. HAYS.”

“ This agreement, between Wm. Williams, of the one part, and Irvin W. Hays & Brothers, of the other part, witnesseth, that I, the said Williams, have this day hired to said Irvin W. Hays & Brothers a negro man, named Peyton, for which said Irvin W. Hays & Brothers accommodate said Williams with the sum of seven hundred and fifty dollars, for the use of which said negro is to serve the said Irvin W. Hays & Brothers for the term of twelve months from this date; said Irvin W. Hays & Brothers further agree to furnish said negro with summer and winter clothing.

WM. WILLIAMS,

I. W. HAYS & BROS.

THORNTONSBURG, April 13th, 1841.

Witness: WILLIAM HERRIFORD.”

The agreement was then read, and witness further stated that during that year, at he thought, some tobacco was put up at the farm of Benjamin Hays, the father of Irvin and William Hays and the plaintiff; that some time during the summer it was brought to Carson & Hays' store, at the mouth of the Chariton, to be shipped by them, and that Irvin, who was one of the firm of Carson & Hays, told witness to mark the tabacco “I. W. Hays & Brothers,” which he did; that he was then clerk of Carson & Hays; that that firm consisted of W. and N. Carson and Irvin W. Hays, and that he knew of no other transaction except those in which the name of “I. W. Hays & Brothers” was used. It was proved by defendants that Peyton served Carson & Hays for seven or eight years; that he was an excellent hand, and that such hands were worth one hundred and fifty dollars per year, and that hemp hands, in the year 1842, hired from $150 to $200 per year.

Plaintiff then introduced evidence to show that Benjamin Hays was the guardian of William Hays; that the money loaned by Irvin Hays was his as such guardian; that he authorized Irvin to lend it out for him; that Irvin gave him the note in a few days after; that he did not know Irvin had lent it in Irvin's name until then, and did not know that Irvin had taken Peyton for the interest until some time after; that there was no partnership between Irvin and William Hays; that William was then a minor, under his guardianship; that shortly afterwards, during that year, when William came of age, he settled with the court, and gave this note to William as part of his money; that William inherited it as heir of one Bartley, and that Irvin was then of age and had no interest in that money; that the tobacco marked “I. W. Hays & Brothers” was Benjamin Hays' tobacco, and was put up in 1842; that Carson & Hays' failed in 1845, and that William Hays told Williams, the defendant, in the spring of that year, that he would not look to Carson & Hays any longer than to the 13th April, for the interest of the bond.

Plaintiff also proved by William D. Swinney that he had a conversation with the defendant, Williams, in the year 1845, and at various times up to that time, in which Williams told him that Peyton was working for the interest of this bond; that he thought Peyton would hire for more, and he wanted to borrow money from witness to pay the note and get his boy.

The court instructed the jury on plaintiff's motion:

1. That if Williams hired the negro, Peyton, to I. W. Hays & Brothers for one year, for seventy-five dollars, and the negro was kept by them, or either of them, without objection by Williams, and without any new agreement between the parties, then the law presumes that the hiring continued at the same rate, although they may believe that the negro was...