Hood v. Mathis

• Decision Date: 31 July 1855
• Citation: 21 Mo. 308
• Parties: HOOD, Defendant in Error, v. MATHIS & SALLY, Plaintiffs in Error.
• Court: Missouri Supreme Court

21 Mo. 308

HOOD, Defendant in Error,

v.MATHIS & SALLY, Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1855.

1. A court cannot direct a verdict for one of two defendants, for the purpose of enabling his co-defendant to introduce him as a witness, if there is any evidence at all against him.

2. It is too late to make the application after the evidence and arguments on both sides are closed, when it is altogether within the discretion of the court whether the case shall be opened for the admission of further evidence.

3. It is no abuse of the discretion of a court to allow a plaintiff, after the argument is commenced, to recall a witness to supply an unintentional omission.

4. As the action of use and occupation can only be maintained when the relation of landlord and tenant exists, it is unnecessary for the plaintiff to show title.

5. Under the third and fourth sections of article 8, of the act concerning justices' courts, (R. C. 1845,) where judgment is rendered by the justice against two defendants, the surety in the appeal bond is liable, though the judgment in the appellate court is only against one of them.

Error to Benton Circuit Court.

This suit was commenced before a justice of the peace by Hood against Mathis & Williams for a year's “rent of ten acres of land.” There being a judgment against the defendants in the justice's court, they appealed to the Circuit Court, giving the statutory bond, conditioned for satisfaction “if the judgment of the justice be affirmed, or if on the trial anew in the Circuit Court judgment be given against the appellants.”

At the trial in the Circuit Court before a jury, there was evidence tending to show that the defendant, Williams, owned land adjoining that of plaintiff, and that there was a dispute as to their division line. The line was run by a surveyor, and a witness “thought” that, though Williams was dissatisfied with it, it was understood that it should stand until the field notes could be obtained. Williams had previously been, and continued to remain, in possession of a cleared field on plaintiff's side of the line; and he agreed with Mathis that if he would make a crop of corn on the field, he should have one-third of the crop, and he (W.) would furnish team and hands. The field was afterward worked by Mathis and a son of Williams. There was evidence tending to show that Mathis promised to pay plaintiff the rent of the land in corn, but one witness stated that he never heard any thing said about rent until the crop was made. There was no evidence of any express promise on the part of Williams. The plaintiff offered to show title, but his evidence was excluded on the objection of the defendants. After the close of his case, and after two of the defendants' counsel had addressed the jury, plaintiff was permitted to recall a witness to prove the value of the corn, to which the defendants excepted. After the close of the argument on both sides, the defendants' counsel asked the court to pass upon the evidence against Williams, in order that he might be introduced as a witness; but the court declined to do so, and an exception was taken.

The court instructed the jury, that if the defendants rented the land and promised to pay the rent, and occupied under such renting, they were liable.

An instruction that the possession of Williams was prima facie evidence of ownership, and that it was necessary for the plaintiff to show title, was refused. An instruction that a promise by Mathis to pay the rent was not binding unless there was a consideration was refused, but offered to be given with the qualification that the use of the land was a sufficient consideration. The jury returned a verdict against Mathis, and in favor of Williams, upon which judgment was entered against Mathis, and Sally, the surety in the appeal bond.

F. P. Wright, for plaintiff in error.

1. The court should have permitted the jury to have first passed upon Williams, so that Mathis might have had the benefit of his testimony. ( Campbell & Brown v. Hood, 7 Mo. Rep. 211. Brown v. Burns, 8 Mo. Rep. 26.) 2. The evidence did not warrant the instructions given, and those refused should have been given. The action for use and occupation is founded upon the relation of landlord and tenant, and can only be maintained where there is an agreement, express or implied. An agreement may be implied from a permissive holding, but there was no evidence that Williams held by permission of Hood. Mathis took possession as the tenant of Williams, and Hood never said any thing to him about the rent until he had made his crop, and a promise then to pay would have been void both as an attornment to a stranger, (R. C. 1845, tit. Landlord and Tenant, § 11,) and as without consideration. The use of the land was no consideration unless plaintiff showed title. 3. It is submitted whether judgment could be entered against the surety in the appeal bond, Williams having been acquitted. 4. The court erred in permitting plaintiff to introduce evidence in chief after he had closed his case.

Gardenhire, for defendant in error.

1. There was no error in refusing to let the jury pass upon Williams' case, that he might be brought in as a witness for Mathis. If there was any evidence at all against him, he could not be a witness. (1 Phill. Ev. 73. Cow. & Hill's notes, part 1, 143. 14 Johns. 119. 15 Johns. 223. 1 Root, 489. Addis. 353. Coxe, 1.) 2. The instructions given were unquestionably proper, as they made plaintiff's right to recover depend upon a renting from Hood, a promise to pay the rent, and occupation under such renting. Under these instructions, no question can arise about consideration or attornment to a stranger. 3. Under plaintiff's instructions, he could not recover unless the relation of landlord and tenant existed, and if it did exist, the tenant could not dispute his landlord's title. 4. The judgment against the surety in the appeal bond was proper. (R. C. 1845, p. 668, sec. 4, p. 671, § 23.) 5. The manner of examining witnesses is within the discretion of the court trying the cause. (8 Mo. Rep. 26.)

LEONARD, Judge, delivered the opinion of the court.

1. The rule as to the acquittal of a defendant, in order that he may...