Hovey v. Pitcher

• Decision Date: 31 January 1850
• Citation: 13 Mo. 191
• Parties: HOVEY v. PITCHER.
• Court: Missouri Supreme Court

13 Mo. 191

HOVEY

v.PITCHER.

Supreme Court of Missouri.

January Term, 1850.

1. PRINCIPAL AND AGENT.

Although an agent at the time he makes a verbal contract discloses to the other party his agency, and gives the name of his principal, it does not necessarily follow that he is not personally liable. Whether the credit was given to the agent or to his principal is, in such cases, a question of fact to be determined by a jury, from the csnversation and acts of the parties at the time of making the contract.

2. INSTRUCTION.

It is improper for the Circuit Court to give an instruction to the jury which is calculated to mislead.

3. CONTRACTS--INTERPRETATION.

In the construction of agreements, courts must look to the objects which the parties have in view, and a substantial compliance with the obligations assumed, is all that is required.

APPEAL FROM JACKSON CIRCUIT COURT.

This was an action of assumpsit, brought by Thomas Pitcher against J. Brown Hovey to the March term of the Jackson Circuit Court, 1848. The declaration contained four special counts and a common count for money paid. The first count charges that Pitcher, as sheriff of Jackson county was about to offer a reward of three hundred dollars for the apprehension and delivery of John H. Harper (a prisoner who had escaped from custody), at the jail of Jackson county, and that Hovey agreed with Pitcher that if he would offer a reward of $500, instead of $300, that he, Hovey, would pay Pitcher $200 in case Pitcher by reason of offering the reward should become liable to pay it. That Pitcher accordingly offered the reward of $500, for the apprehension and delivery of said Harper at the jail of Jackson county, by handbills and advertisement in a newspaper. That afterwards said Harper was taken by one Marcellus Duval and by him and his agents brought back to the jail of Jackson county, and that thereupon Pitcher became liable to pay Duval the $500, and did pay him that sum. Notice of payment is averred, and the count then charges that by reason of the premises the defendant became liable to pay the plaintiff $200, on request, &c. The second count charges the same facts as to the agreement and the offer of the reward and then alleges that Harper was afterwards apprehended by Marcellus Duval and by him and one Nicholas A. Prior brought back as far as Springfield, towards the jail of Jackson county, and that the then sheriff of Jackson county there met them and took Harper away from them by virtue of a bench warrant, and conveyed him to the jail of Jackson county, &c., and this count then alleges that by reason of the premises, Pitcher became liable to pay $500, to Duval and Prior, and did pay it, and that Hovey, thereupon, became liable to pay Pitcher the $200, on request, &c. The third count charges the same facts as the second with this exception, that it sets up a contract as of a reward for the apprehension alone, and not the apprehension and delivery of Harper at the jail of Jackson county, and adverse payment by Pitcher to Duval and Prior at Springfield. The fourth count proceeds like the third, as of a reward for the apprehension alone, and averse that plaintiff paid $400, to Duval and Prior at Springfield, which they received in full satisfaction of the $500, and then avers defendant's liability to pay two fifths of the $400, on request, &c. All the special counts charge the fact that Harper, previous to his escape, had been committed to the jail, by justices, on a charge of murder, and none of them allege a promise by the defendant, upon or after the allegation of his liability to pay, &c. To this declaration the defendant plead the general issue prescribed by the acts of 1847.

At the September term, 1849, the defendant moved the court to strike out the special counts for want of sufficient averment of notice, and because said counts did not aver a promise by defendant to pay, upon or after the allegation of defendant's liability. This motion was overruled by the court below and defendant excepted. This cause then came to trial by a jury, and the following testimony was introduced. John Heard, a witness for the plaintiff, stated that about the 1st day of August, A. D. 1846, he was called upon by the plaintiff to write a notice describing the person of John H. Harper, and offering a reward for his arrest and delivery at the jail of Jackson county; that he consented to do so, but that about the time he commenced writing, the defendant came in and inquired what reward was to be offered. That he told defendant that plaintiff would offer three hundred dollars. Defendant said that three hundred dollars was too little, and spoke of some authority that the friends of W. W. Meredith had given him touching the case of Harper; and thinks that defendant also said that they would be willing to contribute if plaintiff would bid a larger amount. Witness told defendant that it would be unsafe for plaintiff to rely upon the friends of W W. Meredith to pay the reward or any part of it, and suggested that he, defendant, could bid as much as he thought proper himself, for Meredith's friends. Defendant said that the fact that plaintiff was sheriff, would give weight to the bid, and make the arrest of Harper more probable; witness told defendant that he could not advise plaintiff to bid more, relying upon the friends of Meredith to pay it. Defendant then said that he would, if plaintiff would bid five hundred dollars reward, undertake, if the reward ever had to be paid, to pay two hundred dollars of it himself, and at the same time witness thinks he said that they, Meredith's friends, would not let him pay it, or some words to that effect. Witness then asked plaintiff if he was willing to take defendant for the two hundred dollars and offer $500 instead of $300. Plaintiff said he was willing, and the notice was filled with five hundred dollars. Witness stated that the following copy was the notice published by handbills and in the “Western Expositor,” a newspaper published in Independence:

“$500 REWARD!--STOP THE MURDERER!

Escaped from the jail of Jackson county, Mo., on the night of the 30th July, 1846, John H. Harper, who had been committed on a charge of murdering Wm. W. Meredith. Mr. Harper is about 24 years old, 5 feet 6 or 7 inches high, well made, brown hair and a heavy beard, blue eyes, a florid complexion, a plump round face, pleasing address, and very genteel appearance. He is a fine scholar and a lawyer by profession. The above reward will be paid for the apprehension and delivery of said Harper at the jail of Jackson county aforesaid.

THOMAS PITCHER, Sheriff of Jackson County.

Independence, August 1st, 1846.”

Witness believes that plaintiff was present all the time when the conversation above related took place between himself and defendant--knows he was present when defendant offered to pay $200, as above stated. This conversation took place in the witness' office in Independence, Mo. Plaintiff at first requested witness to put $300 into the notice as a reward, but after that conversation he told witness to make the reward $500. On cross-examination he stated that he thinks plaintiff was present at the entire conversation; that considerable altercation took place between plaintiff and defendant, the words of which witness does not recollect, but thinks he has stated the substance of all that took place between the parties; that defendant assisted in describing the person of Harper and in writing the notice, but witness does not remember that defendant suggested the last clause in the notice. Thinks Hovey said that if the reward had to be paid, he would pay $200 of it, but does not recollect any special promise to pay it to Pitcher or any other particular person. He further stated that he knew that Hovey (defendant) prosecuted Harper before the committing justices, but did not know of his own knowledge who employed him to do so; that at the time of writing the notice, Hovey stated that he was authorized by the father of Meredith to take any steps that he thought necessary to bring Harper to justice. Witness considered Hovey the attorney of the friends of Meredith.

Defendant put the following question to witness: “Did you not, on a former trial of this cause, before the Circuit Court, in answer to a direct question propounded to you upon that point, by the judge, say, that Hovey's undertaking was to pay so much of the reward to the person who should apprehend and deliver Harper at the jail of Jackson county?” To this question the witness answered: “I never stated that Hovey promised to pay the person delivering Harper at the jail. I may have said that my understanding was that Hovey was to pay two hundred dollars of the five hundred bid, when Harper should be delivered at the jail.”

Benjamin F. Thomson, a witness for the plaintiff, stated that in the latter part of September, 1846, at the town of Springfield in this State, he saw plaintiff pay to one Prior $400 for the arrest of John H. Harper. Prior claimed $450 at first, which plaintiff refused to pay, because plaintiff said it was worth more than fifty dollars to bring Harper to Independence; that plaintiff, on the same evening authorized witness to say to Prior that he would give him $400, and on being informed of this, Prior said he would take it, and the $400 was paid by plaintiff to Prior; that some four days previous to this payment information was received by a letter from Prior to plaintiff, that John H. Harper had been arrested and was in the town of Springfield in this State, detained by Duval and Prior. On reception of this information witness went to the town of Springfield, and took with him a bench warrant and a capias for the arrest of said Harper; the capias was directed to the sheriff of Greene county. He further stated that after he arrived at Springfield he took Harper by virtue of the bench warrant and brought him back, and put him in the county jail of Jackson county; that he did not arrest...