Hoffman v. Parry
| Decision Date | 28 June 1886 |
| Citation | 23 Mo.App. 20 |
| Parties | ADAM HOFFMAN, ADMINISTRATOR DE BONIS NON OF W. ADAMSON, DECEASED, Respondent v. JOSEPH C. PARRY, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Barton Circuit Court, HON. CHARLES G. BURTON, Judge.
Reversed and remanded.
Statement of case by the court.
The petition charges that in 1862, one Washington Adamson delivered to defendant certain vouchers held by him on the government of the United States for horses sold by Adamson to said government, calling for the sum of four hundred dollars and that defendant agreed and undertook to collect the same for Adamson; and that defendant did collect the same. That Adamson died intestate in the year 1863. There were successive letters of administration granted on his estate until the plaintiff was appointed administrator de bonis non in 1866. It is then alleged that defendant did not collect said money until after the death of Adamson; and that he concealed from the widow of Adamson, while she was administratrix, and from this plaintiff, the fact that he had received said vouchers and collected the money thereon, and that they had no knowledge thereof until after final settlement and discharge of said administrator. The probate court re-appointed plaintiff such administrator de bonis non for the purpose of this action in 1883. The petition asks judgment for the sum so collected with interest from date of collection.
The answer tended the general issue, and the plea of the statute of limitations. The reply denied the bar of the statute of limitations, and alleged " that defendant, by concealment of the facts alleged in the petition, prevented the bringing of the action on account thereof until within less than five years before this suit was commenced."
The cause was tried before a jury. The plaintiff's evidence tended to show that in 1862 the defendant went to Fort Scott Kansas, to sell some horses to the government, and at the request of Adamson took certain horses for him to sell as an accommodation for Adamson. The horses were accordingly turned over to the government in the name of defendant, and a voucher was issued therefor, together with the amount of defendant's horses, in the name of defendant. This was done, presumably with the assent of Adamson, to facilitate collection. Defendant gave this voucher to Nathan Bray, an attorney at law, resident near by, for collection. After Adamson died, both his widow and the administrator had conversations with defendant, in which he told them he had so placed the voucher in the hands of Bray, and that nothing had been collected, and that he had never received anything on it. This was as early as 1866.
Plaintiff also introduced evidence showing that in 1867 a power of attorney had been executed by defendant to one Sutherland, of St. Louis, authorizing him to collect said voucher, and evidence that the money on the voucher had been paid by the government to said Sutherland in 1867. There was no proof that defendant had ever received this money from Sutherland. The defendant's testimony was, in substance, that he had put Adamson's horses in with his to sell, for Adamson's accommodation, as a neighbor; that the voucher was given for the whole number of horses sold, and that being unable to obtain the money short of Washington City, he handed the voucher to Nathan Bray for collection, who was a man of high character. and a reputable lawyer. That he was acting in this matter both for himself and Adamson, and without any hire; that he frequently made inquiry of Bray about the collection, and that Bray always told him he had not been able to collect the money; and that he so reported the fact to plaintiff and the widow. In respect of the power of attorney to Sutherland, he testified that he had no recollection whatever of making such an instrument to him; that he signed such papers respecting the collection of the claim as were presented to him by Bray, and supposed the paper was made to him; that he never saw or heard of the man Sutherland before this controversy, and had no knowledge of his having collected the money; and that he never received one cent from Sutherland or any other person on account of said voucher. The larger portion of this voucher belonged to defendant for his own horses.
Nathan Bray appears to have died some time prior to the institution of this action.
Under the instruction of the court the jury found the issues for plaintiff, and judgment was entered accordingly. Defendant has appealed.
THURMAN & WRAY, for the appellant.
I. A married woman is not a competent witness for or against her husband in a suit where her husband is a party. 1 Phil. Evid. (4 Ed.) 87; 1 Greenl. on Evid., sect. 341. There are two exceptions to this rule, made by the statutes of Missouri; first, where she has an interest in the subject matter of the suit; sect. 4010, Rev. Stat; second, when she acts as agent of her husband. Sect. 4014, Rev. Stat.
II. Where there is a total failure of proof of the cause of action, as stated in the petition, it is fatal to plaintiff's recovery, for the plaintiff can only recover upon the case as made by the pleadings. Dougherty v. Matthews, 35 Mo. 528; Faukner v. Faukner, 73 Mo. 327; Waldhier v. Railroad, 71 Mo. 514; Jackson v. Hardin, 83 Mo. 175.
III. Defendant was a mandatory, and was only liable for a failure to bestow such care as he bestowed on his own property, or for such gross negligence as is inconsistent with good faith. Story on Bailments (9 Ed.) sects. 174, 182; Wiser v. Chesley, 53 Mo. 547; 2 Kent's Com. 560.
IV. Agents, as bailees, have the right to employ a sub-agent, where, from the nature of the undertaking, it must have been contemplated by the principal (bailor), or where there is a custom of employing a sub-agent in the transaction of the business of the agency. Story on Agency (9 Ed.) sect. 201; 1 Parsons on Cont. 83; Planter's Bk. v. 1 st Nat. Bk., 75 N.C. 544; Hall v. Lauderdale, 46 N.Y. 70. And he is not liable for the default of the sub-agent, unless he participated in it, or acted in bad faith in selecting the substitute. Story on Bailments (9 Ed.) 174; Story on Agency, sect. 217 a; McLean v. Rutherford, 8 Mo. 109; McMorris v. Simpson, 21 Wend. (N. Y.) 610; Erskine's Inst., book three, title three, section 34; Dig. Lib. 17, Tit. 1, L. 8, sect. 3.
V. The statute of limitations begins to run against a cause of action in favor of an estate as soon as an administrator is appointed, and there is a person in being that can sue. Milan v. Pemberton, 12 Mo. 599; Mc Kinzie v. Hill, 51 Mo. 303; Ayers, Adm'r v. Donnell, 57 Mo. 396; Tapley's Adm'r v. McPike, 50 Mo. 589.
VI. Under section 3244, Revised Statutes, a defendant may be deprived of the benefit of the statute of limitations; but when these matters are relied on as answer to the plea of such statute, they should be fully set out, so as to advise the person pleading the statute of the particular thing charged to have been done to avoid his plea. And it must be proven as pleaded. Ignorance of the facts which constitute a cause of action is no excuse for not bringing a suit within the time limited by law for bringing such actions. Moore v. Mining and Smelting Co., 80 Mo. 86; Foley v. Jones, 52 Mo. 64; Wells v. Halpin, 59 Mo. 92; Smith v. Newby, 13 Mo. 160.
VII. A general denial is equivalent to the " general issue," at common law, and it is sufficient to put in issue all the facts necessary for a plaintiff to prove in order to recover. Moorman v. Barton, 16 Ind. 266; Perkins v. Emil, 2 Kan. 355; Allen v. Richard, 83 Mo. 55.
VIII. The statute of limitations was sufficiently pleaded in defendant's answer, and the reply admits the sufficiency of the answer. Birdsey v. Helner, 6 F. No. 3, p. 147.
IX. If there is any evidence tending to establish a defence, the trial court is bound to submit the issues to the jury. Holliday v. Jones, 59 Mo. 482; Kelly v. Railroad, 70 Mo. 604; cited and approved in 79 Mo. 466, and in 80 Mo. 225.
BULER & TIMMONDS, for the respondent.
I. The petition sufficiently alleges the improper conduct of defendant in concealment of the fact that he had collected the money, to avoid the bar of the statute of limitations. Sect. 3244, Rev. Stat.; Arnold v. Scott, 2 Mo. 13; Smith v. Newby, 13 Mo. 159.
II. There was no error in permitting Mrs. Hoffman to testify. Frigley v. Cowgill, 48 Mo. 295; Sherwood's Adm'r v. Hill, 25 Mo. 392; Scroggin v. Holland, 16 Mo. 425; Cannon v. Moore, 17 Mo.App. 92; Robinson v. Talmage, 97 Mass. 171. But even if erroneous, the admission of her testimony would be no ground of reversal, for she testified to nothing more than was admitted by defendant in his own testimony; and her evidence could not have affected the verdict, and the error, if any, was harmless. Public School v. Risly, 40 Mo. 370.
III. Proof that Sutherland received the money for defendant, under the power of attorney introduced in evidence, was sufficient to fix the liability of defendant in this action. Dunlap's Paley's Agency, 292; Story on Agency, sect. 231; Matthews v. Hayden, 2 Esp. Cas. 509.
IV. The answer did not aver any facts to relieve defendant from his liability. Hence the question of negligence, or of defendant's duties as a mandatory does not arise in the case, and the authorities cited as to bailments are inapplicable. Camp, Adm'r, v. Heelen, 43 Mo. 591; Northrup v. Insurance Co., 47 Mo. 435; McCormick v. Brush, 38 Tex. 344.
V. Even if properly pleaded, the facts, as shown in evidence, would have constituted no defence in this action, so far as defendant's original liability on account of the money collected by his attorney in fact is concerned. Cobb v. Becke, 6 Q. B. (E. C. L.) Rep. 930; Montgomery Co. Bk. v. Albany Bk., 7 N.Y. 459.
VI. Plaintiff's right...
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