Hesse v. Missouri State Mut. Fire & Marine Ins. Co.

• Decision Date: 31 March 1855
• Parties: HESSE, Plaintiff in Error, v. THE MISSOURI STATE MUTUAL FIRE AND MARINE INSURANCE CO., Defendant in Error.
• Court: Missouri Supreme Court

21 Mo. 93

HESSE, Plaintiff in Error,

v.THE MISSOURI STATE MUTUAL FIRE AND MARINE INSURANCE CO., Defendant in Error.

Supreme Court of Missouri.

March Term, 1855.

1. The 33d section of the 4th article of the act concerning practice at law (R. C. 1845) prohibiting a plaintiff from taking a nonsuit after the cause has been submitted to a jury, or to the court sitting as a jury, is still applicable, notwithstanding the practice act of 1849, in all cases which would have been actions at law under the old system, and so the proper subjects of a jury trial; but in what would formerly have been suits in equity, the plaintiff may dismiss his petition at any time before a final decree. The 6th and 7th sections of the 13th article of the act of 1849 furnish the rule of distinction.

Error to St. Louis Circuit Court.

Action upon a policy of fire insurance, to recover a balance claimed to be due on account of a loss. The cause was tried by the court, a jury being waived. The evidence being heard, the court adjourned until the next day, taking the case under advisement. On the next day, the court orally stated the facts found and the conclusions of law thereon, and, as was the practice, directed the defendant's counsel to reduce the finding to writing, to be signed by the judge. At this point, the plaintiff asked for leave to take a nonsuit, which was refused, and after a judgment for the defendant, he sued out this writ of error. The issues in the cause will sufficiently appear from the finding of the Circuit Court, which was substantially as follows:

In November, 1850, the plaintiff's stock of goods was destroyed by fire, being at the time covered by the defendant's policy of insurance for the sum of $2000. After the fire, a dispute arose between the plaintiff and defendant as to the amount of the loss, and it was finally compromised and adjusted at $1500, of which $912 was paid by the defendant, leaving a balance of $588. On the 21st of May, 1851, plaintiff assigned this balance to H. N. Hart, who, in August, 1851, brought suit against the defendant for the same. In that suit, the defendant pleaded as an off-set a note executed by the plaintiff and his partner to Doan, King & Co., in 1846, which was assigned to the defendant on the 6th of May, 1851, and upon which the amount due exceeded the amount sought to be recovered by Hart, as the assignee of the plaintiff. This off-set was allowed to the extent of the plaintiff's claim, and a judgment rendered for the defendant.

Upon the above facts, the Circuit Court declared, as conclusions of law, 1st, that the judgment in the suit of Hart against the defendant was a bar to the present suit; 2d, that the defendant had no capacity, under its charter, to take the note executed to Doan, King & Co. by assignment, and so was not entitled to the judgment claimed in the answer in the present suit, for the balance due on said note over and above the amount for which it had been set-off in the former suit.

Hart & Jecko, for plaintiff in error.

1. The court below improperly admitted the record of the case of Hart against the defendant to be read in evidence. In that suit, the defendant took issue upon the allegation of assignment, and that issue was never tried; and yet the Circuit Court held that the judgment there was a bar to the present suit, although it is further found that the off-set upon which that judgment was rendered was illegal. 2. The Circuit Court erred in refusing the plaintiff leave to take a nonsuit when it was asked. When the trial is by jury, the plaintiff is always allowed to take a nonsuit after hearing the instructions; and when the trial is without a jury, in which case the facts are first found, and then the law declared, it is a harsh practice to deny him the same right.

Glover & Richardson, for defendant in error.

1. The assignment to Hart prior to the institution of this suit, was a good defence. (Prac. Act of 1849, art. 3, § 1.) 2. The judgment in the case of Hart against this defendant was a bar. 3. A plaintiff has no right to take a nonsuit...