Hickey v. Ryan

• Decision Date: 31 October 1851
• Citation: 15 Mo. 63
• Parties: HICKEY v. RYAN.
• Court: Missouri Supreme Court

15 Mo. 63

HICKEY

v.RYAN.

Supreme Court of Missouri.

October Term, 1851.

ERROR TO ST. LOUIS CIRCUIT COURT.

HILL, for Plaintiff, cited: Vaulx v. Campbell's Ex'r. 8 Mo. R. 227; Cleveland v. Davis, 3 Mo. R. 331; Chouteau v. Searcy, 8 Mo. R. 737, in point. Garesche's case, 8 Mo. R. 228.

HUDSON, for Defendant.

SCOTT, J.

This was an action of assumpsit, brought by Hickey against Ryan, for services rendered. Hickey recovered judgment, upon which this writ of error is prosecuted by Ryan. Hickey was employed by Ryan for a number of years, as a laborer, at $14 per month, until his account amounted to a considerable sum. During the course of his employment, or shortly after its termination, Ryan obtained from him promissory notes amounting to $1,400. There was some proof that the consideration of these notes was the sale of an ice-house. The subscribing witness to two of the notes, testified, that “to the best of his recollection, they had something to do with an ice-house transaction, and sale of an ice-house, by Ryan to Hickey.” Ryan, he “thought was embarrassed in his affairs, at the time.” There was no evidence as to the consideration of the other two notes. The defense to the notes, was that there was no consideration for them, and that the sale of the ice-house, by Ryan, was for the purpose of defrauding his creditors. There was evidence, showing that Hickey sold ice for Ryan for a considerable time and that he accounted with him for money received in the course of his employment. The defendant pleaded to the plaintiff's declaration, the general issue--set-off for goods and merchandise, money paid and laid out, money had and received upon an account stated, and the statute of limitations of two and five years. Issues were on these pleas, and the trial resulted in a verdict for the plaintiff for $1,045 80, of which the sum of $42 00 was afterwards remitted.

The court gave the following instructions, at the instance of the plaintiff: 1. That if the jury believe from the evidence, that the plaintiff was in the employment of the defendant, and rendered him services, they should allow him for such services, as much as they believed from the evidence, the same were reasonably worth--not to exceed fourteen dollars per month, for the time he was so employed, but not to exceed the limitation specified in the second instruction given for defendant. That if the jury believe from the evidence, that the plaintiff rendered services or performed labor for defendant, at his request, the plaintiff is entitled to recover for the same, unless the defendant has established by evidence, that he has paid for such services or labor, or has a legal and just offset against the same. The jury may allow interest, on the amount found to be due the plaintiff, from the date of the institution of this suit.

The court, of its own motion, gave the following: As to the extent of the plaintiff's claim. 3. The jury are instructed that the plaintiff's claim in this action, is restricted to work and labor, and that he is not entitled to recover at their hands, any allowance of the proceeds of ice belonging to him, but received by the defendant. As to the limitation. 4. The plaintiff can only be allowed, in this case, for work and labor, from and arter the 3rd day of October, 1841: all prior to that date the jury will exclude. As to the consideration of the notes. 5. The jury are instructed, that these, on their face, import a good and valuable consideration; and if the jury shall be satisfied from the evidence, that they were executed by the plaintiff, and delivered to the defendant, it is for the plaintiff to establish by proof, satisfactory to the jury, that there is no such consideration. Neither a want, nor a failure of consideration is made out by showing the receipt, by the defendant, of moneys arising from the sale of ice, to which the plaintiff was entitled. As to the question of fraud, in this case. 6. The court instructs the jury that fraud must be proved; but this rule does not exact direct and positive proof. It is only meant to signify to the jury, that while the existence of fraud may be presumed, whenever the facts and circumstances, disclosed by the evidence, render such presumption just and reasonable, yet, that without such evidence, no such presumption can be indulged in by the jury.

The court is asked to instruct you, to the effect, that no man can take advantage of a fraud, to which he is a party. This is so, but it is equally true, as a general proposition, that the law withholds its assistance or protection from both parties to a transaction, shown to be fraudulent, and in which they concur. If, therefore, the jury shall be satisfied from the evidence of the notes or any of them, that Ryan was embarrassed in his circumstances, and that the said notes, or any of them, were executed in fulfillment of a design between the parties thereto, to hinder, delay or keep off Ryan's creditors, or to cover up or conceal his property from them, then the said notes or such of them as shall be shown to have been made for that purpose, cannot be allowed the defendant, in set off.

The defendant asked the following, which were refused: 1. The plaintiff is not authorized to set up as a claim in this case, any moneys...