Henshaw v. Dutton

• Citation: 59 Mo. 139
• Parties: FRED. W. HENSHAW Appellant, v. EDWARD DUTTON, Respondent.
• Decision Date: 28 February 1875
• Court: United States State Supreme Court of Missouri

59 Mo. 139

FRED. W. HENSHAW Appellant,

v.EDWARD DUTTON, Respondent.

Supreme Court of Missouri.

February Term, 1875.

Appeal from Buchanan Circuit Court.

Ensworth, Hill & Carter, for Appellant.

B R Vineyard, with A. H. Vories, for Respondent.

NAPTON, Judge, delivered the opinion of the court.

This suit was upon a note for $1,200. The answer admitted the execution of the note, but set up as a defense that there was no consideration for it; and proceeded to state the following facts to show this want of consideration, to-wit: that plaintiff and defendant were partners in certain manufacturing machinery and as such partners were indebted to Beattie & Co., on a note for about $3,000; and that the note sued on was given on condition that if Beattie & Co. would release the plaintiff from the payment of said note, he, plaintiff, would sell and deliver to defendant all his plaintiff's interest in said partnership property--to which defendant consented; that under such understanding and agreement said note was executed, but was to be delivered to plaintiff upon said Beattie & Co. releasing said plaintiff from said note. And the defendant charges the fact to be that said Beattie & Co. refused to release plaintiff from his liability on said note, and that said agreement “fell through” and that the note sued on, by some means unknown to defendant and without his consent, came into the hands of plaintiff.

The plea further states, that defendant never received any consideration for said note, nor was said plaintiff's interest in said partnership property turned over to defendant, as by said agreement it should have been done; that, therefore, said note is wholly without consideration and void, and never was delivered with consent of defendant.

The plaintiff moved to strike out that part of defendant's answer which related to the note due by plaintiff and defendant to Beattie & Co.

It seems from the record that there was a mis-trial upon the issue, and on the calling of the case subsequently, the plaintiff insisted on taking up the motion to strike out parts of the answer; but the court refused to consider the motion and ordered the cause to be tried on the pleadings. On this second trial, the plaintiff read the note and the defendant then proceeded to introduce evidence.

The substance of the evidence is, that plaintiff and defendant were equal partners in some machinery in a woolen manufactory; that they owed Beattie & Co. about $3,000; that a proposal was made for one or the other to sell out his interest, and that defendant offered $1,200 for plaintiff's interest. The defendant signed a note and a deed of trust to secure it. This was for $1,200, the assumed value of plaintiff's interest in the mill. The defendant was to pay all debts of the concern, and among others he was to get Beattie & Co. to release plaintiff on the note for $3,000 due by the firm. Beattie at first agreed to this, but ultimately declined to release Henshaw, the plaintiff.

It seems that Henshaw had a policy on his interest in this property. After the note and deed of trust were signed and delivered to the plaintiff, it was proposed to go over to the Insurance Company's office and have this policy assigned to defendant. This was done, and the assignment was entered on the books of the Insurance Company, and the policy delivered to defendant. After Beattie & Co. declined to discharge plaintiff, defendant asked plaintiff to give up the note; but this was not done.

Defendant was in possession of the property at the time of this arrangement, and the plaintiff never meddled with it afterwards. He never had any control over it or came round where it was. The property was in defendant's house. The defendant agreed to pay all the debts, and the defendant agreed to keep up the policy of insurance. This is the substance of the evidence of defendant himself, except that he states that the agreement was to be relinquished on the release of Beattie & Co. to Henshaw. The defendant stated that this release was a condition of the...