Hoyt v. Reed

• Decision Date: 31 March 1852
• Citation: 16 Mo. 294
• Parties: HOYT, Plaintiff in Error, v. REED, Defendant in Error.
• Court: Missouri Supreme Court

16 Mo. 294

HOYT, Plaintiff in Error,

v.REED, Defendant in Error.

Supreme Court of Missouri.

March Term, 1852.

1. The plaintiff, in his declaration, averred that he had deposited a certain sum of money with B., as a banker, and that the defendant, C., in consideration that B. would take him as a partner, had promised to pay the sum so deposited. The evidence was, that the plaintiff had deposited the money with B. and D. as partners, and that D. went out, and shortly after C. came into the firm. Held, this was no material variance.

2. In such a case, when the plaintiff produced his bank book, which showed his account, commencing before the defendant came in as a partner, and running down after he came in, with balances struck after that time; and when it was shown that this account was but a transcript of the ledger of the concern, the court could not, with propriety, say there was no evidence that the defendant had assented to the transfer of the liabilities of the old to the new firm.

3. Where the plaintiff obtains a verdict for too large an amount, it is proper to allow him to enter a remittitur for the excess, to avoid a new trial.

Error to St. Louis Circuit Court.

This was an action of assumpsit, instituted by Silas Reed, the defendant in error, in the St. Louis Circuit Court, at the November term, 1844, against Cyrus G. Hoyt and Apollo W. Sterling.

The declaration was for money lent and advanced, money had and received, and for money paid, laid out and expended.

At the November term, 1849, of said court, the plaintiff, by leave of court, amended his declaration, by adding a special count, to the effect that the plaintiff, Reed, had deposited $4,063, which he lent and advanced to the defendant, Sterling, in his business of broker and banker, at his instance and request; and that Hoyt, in consideration that Sterling would take him as a partner in said business, and would form a partnership with him, undertook and promised to pay the plaintiff the said sum of money, etc. The plaintiff also averred, in his amended count, that Sterling did take Hoyt into his business as a partner, and formed a partnership with him, by means whereof, etc. To the original and amended declaration Hoyt plead non assumpsit, and defended the action.

The plaintiff, Reed, furnished and filed a bill of particulars as the foundation of his action, headed as follows:

“Bill of particulars of his demand against said defendant, Hoyt. Cash deposited with defendant as co-partner with Apollo W. Sterling, as follows:

1843.

October 14th, cash

$ 300.00

1843.

October 28th, cash

500.00

1843.

October 28th, cash

300.00

January--notes deposited as cash

450.00

1843.

December 26th, cash

1000.00

1843.

December 27th, notes deposited as cash,

600.00

cash

220.00

1844.

January 4th, cash

500.00

1844.

January 4th, cash

193.00

$4063.00

Cash lent and advanced by plaintiff to defendant, Hoyt, as co-partner with defendant, Sterling, as follows:

1843.

October 14th, cash

$300.00.”

(Repeating the same items as above.)

At the trial the plaintiff below introduced as a witness the book-keeper of Sterling & Co., who testified that the firm of Sterling & Co., when he first knew it, was composed of Apollo W. Sterling and ______ Eckley; that Eckley withdrew, and Hoyt became a partner; that the partnership was to have taken place on January 1st, 1844; but the books not being ready, it did not until January 8th, 1844. The bank book of the plaintiff, Reed, with Sterling & Co., was shown the witness, and he testified that he recognized it, and that most of the entries in it were in his own handwriting; that Sterling & Co. were doing a broker's and banker's business; that they received deposits from others besides Reed. The witness did not know on what terms Hoyt became a partner in the firm of Sterling & Co.; that it was about the 8th January, 1844, when he went in; that he, the witness, was in the employ of Sterling & Co. after Hoyt became a partner, as long as the firm did business; that all the entries in the bank book, and not included in brackets, are in his hadwriting. He was not able to state who made the other entries.

The witness testified that, after Hoyt became a partner in the firm, he was not personally engaged in the transaction of the business. He was engaged and employed in Col. Chambers' office, collecting rent, etc. The name of the firm was not changed when Hoyt came in. Witness was not able to state whether the deposits were made on the days on which credits are made in the said bank book of plaintiff. The entry in said bank book of January 11th, 1844, it was the impression of the witness, was not a deposit of cash, but was that much assumed by A. W. Sterling and was charged to his private account. This bank book was in the posession of Reed. The said entry was made by direction of Sterling, but witness was not able to state whether the transaction was interest or old deposits. His impression was that he charged said amount of $193 in Sterling's private account, and credited Reed with it. The witness stated that the bank book referred to embraced deposits made with the concern before Hoyt went into it.

Eckley went out about the 1st of January, 1844, or last of December. The book offered in evidence was in Reed's possession, and was his bank book with Sterling & Co. Witness did not know that Eckley was a partner, except from what Sterling told him. Eckley's son was employed about the office, and Sterling wanted to get rid of Eckley and his son. Before Hoyt came into the concern, witness saw Hoyt, Sterling and Col. Chambers in a room in the rear of the office on a Sunday, either before the 1st of January, or after the 1st, and before the 8th of January, 1844, looking over the books of the concern of Sterling & Co., but the witness did not know what sort of examination was made, or what they were doing with them. He found them there after usual dinner hour, and he left before dark; can't say whether Hoyt was there after he left, or went away before. Hoyt put $1,200 into the concern. The style of the firm was Sterling & Co., and it was not changed after Hoyt came in as a partner. The witness stated that this bank book is a transcript of the ledger of the concern.

The bank book shown witness, and about which he gave testimony, was read in evidence. The first entry in the bank book, referred to by this witness, is dated October 26th, 1843, on the debit side, and October 24th, 1843 on the credit side. From this time forward, different entries, at different dates, and on both sides of the account, were made down to December 22d, 1843, when the book appears to have been balanced, and a credit in favor of Reed appears of $1,575.23.

The next entry on the debit side is January 8th, 1844, and also on the credit side on the same date. Different entries, on different dates, and on both sides of the account, were made down to January 31st, 1844, when a balance was struck, which was $1,162.86, in favor of Reed. The next entry on the debit side was February 2d (year not stated) and different entries were made on different dates, on the debit side of the account, down to February 13th, 1844. On the credit side, the last balance of $1,162.86 was carried forward, and at the last named date, the debits footed at $360.85, and the credits at $1,162.86, leaving a balance of $802.01.

This was all the evidence in the case; and thereupon the defendant, by his counsel, asked the court to give the following instructions, viz:

1. There is no evidence upon which the jury can rightfully find for the plaintiff on the amended count.

2. There is no evidence that the defendant, Hoyt, assented to the transfer of any of the liabilities of A. W. Sterling and Eckley, or either of them. to the firm of which he, the defendant, became a member Which were refused by the court, and to the refusal thereof defendant at the time excepted. The court gave the following instructions at the instance of defendant, viz:

1. If the jury find that the item of $193, credited on the book of plaintiff, was merely a balance in favor of Reed, due from Sterling to Reed, and not a deposit, then the defendant, Hoyt, is not liable for it, unless he assented to it, as a charge against the firm of which he was a member.

2. If the jury find that the item of $193, entered to...