Hughes v. McAlister & Co.

• Decision Date: 31 October 1851
• Citation: 15 Mo. 296
• Court: Missouri Supreme Court
• Parties: HUGHES v. MCALISTER & CO.

15 Mo. 296

HUGHES

v.MCALISTER & CO.

Supreme Court of Missouri.

October Term, 1851.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

Ball brought an action in the Court of Common Pleas against Barlow and others, recovered judgment, and the amount being made on an execution by the sheriff, was brought into court. Various claimants appeared to the fund. The attorneys for the plaintiff claimed the amount of their fees. This claim was disposed of satisfactorily to all parties, and need not further be noticed. The other claimants were McAlister and O'Flaherty, who insisted on their right to all the money. James M. Hughes claimed $1,200, and interest from the 2nd of April, 1850: Heiskell, Dudley & Co. claimed $453 98, and interest from 2nd April, 1850: and Samuel T. Marshall claimed the balance of the money after paying Hughes, and Heiskell & Co.

As appears from the foregoing statement of the claims, the real controversy was and is between McAlister & O'Flaherty, on the one side, and the three last mentioned claimants on the other. It was agreed that the conflicting claims of McAlister & Co., Heiskell, Dudley & Co., Hughes, and Samuel T. Marshall should all be submitted at the same time to the court, sitting as a jury. McAlister & Co. claimed the money on the ground that the note, on which judgment was obtained, belonged to them, and that the first was in the name of Ball for their use. Hughes claimed $1,200, on an alleged assignment of part of the judgment to him to procure that sum advanced by him to Ball. This assignment was made to him in 1850. Heiskell, Dudley & Co. claimed that there was an assignment to them of so much of the judgment as would cover $453 98, and interest, made October 9, 1850; and Marshall claimed to have an assignment of the remainder of the judgment under the same date. At the trial before the St. Louis Court of Common Pleas, McAlister & Co. introduced as a witness, James C. Way, teller of the Bank of the State of Missouri, who testified that the notes on which the judgment was obtained were deposited in bank by McAlister & Co. and carried to their credit; that the smaller one was discounted, and the proceeds paid to McAlister & Co.; that after protest of the notes, McAlister & Co. paid to the bank the amount of the discounted note, and then withdrew both notes from bank. They also introduced Jno. G. Stevenson, who testified that he was a clerk of the bank, and recognized these notes as the same which had been in possession of McAlister & Co. before they were due, as testified by Mr. Way. McAlister & Co. then introduced Jno. B. Carson, who testified that he knew Spencer Ball; and that the firm of which he was a member, did, as agents, in the spring of 1850, sell to Ball the steamboat Monongahela. The terms of sale were, one half cash and the balance in notes at six and twelve months. The cash payment was made by a check of McAlister & Co. on the Bank of Missouri. The notes were, one for $1,500, payable in six months, and one for $1,590, payable in twelve months. Both of these were indorsed by McAlister & Co. McAlister here produced the notes, and witness identified them. The interest on one of the notes was paid by Ball in money at the time.

Joseph Tabor, witness for McAlister & Co., testified that on the 2nd April, 1850, he went with Barlow, Donler and Worthington, to the office of Mr. Crockett to purchase the steamboat Mary Blane. Capt. Ball and Capt. O'Flaherty (on the part of McAlister & Co.), were present. The price agreed on was $5,540, of which witness paid in cash $2,000, and for the remainder, the notes on which judgment had been obtained in this cause, were given. The notes were drawn, payable to the order of witness. O'Flaherty, looking at them, said that witness' name must be first on their back. The money and notes were laid on the table, and were taken up by O'Flaherty. Shortly before the maturity of the notes, McAlister handed to witness and to Ball a notice that the notes were about to fall due. Witness learned from Ball that McAlister had advanced money on the notes; namely, $3,000 for the purchase of the Monongahela, after the notes were protested. Ball spoke to witness of McAlister & Co.'s suffering by it, and said, that they having made advances on them, he wished them met on their own account. That a proposal was made, by either McAlister or Ball (witness could not say which), that the makers and indorsers of the notes, should pay the smaller of them and renew the larger for six months, provided security were given. Witness understood that Ball wished to collect the money to pay his debts. Witness thought that Ball had power to control the notes at that time. This was after the protest; that Ball and McAlister & Co. were acting together, as mutually interested in the notes, and that Ball was acting for both.

Mr. Crockett for McAlister & Co. stated that Ball and O'Flaherty came to his office when directions to sue on the note were given, and that O'Flaherty handed the notes to him. After conversation, it was agreed by both, that suit should be brought; and both agreed that the suit should be brought in the name of Ball. Nothing was said, as to whose use the suit was brought. I learned, from what passed, that Ball was indebted to McAlister & Co. in some way, and that he had indorsed and delivered to them these notes, either as collateral or to meet balances, but which of these, witness did not understand. Ball expected or intended the proceeds of the notes or a part of the proceeds, when collected to go to McAlister & Co., to meet their advances to him, but the state of the accounts between them, witness was not acquainted with. On cross-examination, Mr. Crockett said he was attorney for Ball, but understood that the proceeds of the notes, or part of them, were to go to McAlister & Co. Seeing that McAlister & Co. were the last indorsers witness inquired whose name the suit was to be brought in, and was told to sue in Ball's name. There was very little said about it. Witness does not know that he was instructed to bring the suit to the use of McAlister & Co. Sometime afterwards, when the assignment of Hughes and Heiskell & Dudley were shown him, witness had the impression, but cannot say whence it was derived, that McAlister & Co. and Ball, had settled their accounts. Witness supposed that Ball, in making the assignment, was acting with the consent of McAlister & Co. Witness told Heiskell that there had been no prior assignment of the claim; by which, witness meant there had been none since the bringing of the suit. When suit was brought, witness supposed that the notes belonged to Ball, and McAlister & Co. were to be paid out of their proceeds. Witness understood that McAlister & Co. were agents for Ball, receiving deposits from him and making advances for him, and that when suit was brought, Ball was in their debt. On re-examination, witness stated that he handed the notes to Mr. Marshall (his partner) and told him to bring suit, in the name of Ball.

Geo. Marshall testified that after the interview of Ball and O'Flaherty with Mr. Crockett, the latter came into witness' room and told him to sue on the notes in the name of Ball. Ball told witness to erase the names of McAlister & Co. Witness afterwards conversed with Ball, in the absence of O'Flaherty.

McMegan testified that the account exhibited, correctly showed the money relations between Ball and McAlister & Co.; that witness was book-keeper for McAlister and Co.; that McAlister & Co., as indorsers, paid the two notes given for the deferred payments on the Monongahela, as well well as the cash payment. Ball paid them, on the 2nd of April, 1850, $2,000; witness heard him say that this money came from the sale of the steamboat Mary Blane, at the same time he deposited the notes on which this judgment was obtained. The notes and cash were received and he was credited with them. At the date of the sale of the Mary Blane she owed McAlister & Co. $1,050. This sum was, by agreement with Ball, charged against him, and the boat was released. The account gave Ball credit for the notes in question and other money, and charged him with divers payments made on his account by McAlister & Co., and showed him still indebted to them in the sum of $1,84402. On cross-examination, witness stated the sources and means of his knowledge of the correctness of the account, and stated that when McAlister & Co. indorsed said notes for the purchase of the Monongahela, they charged him therewith in the account. Had he paid the notes he would have been credited with their amount.

On the part of Hughes, Heiskell & Dudley, and Samuel T. Marshall, the following evidence was given, viz: the assignments to them, executed by Ball as before mentioned, were read, and evidence was given of the indebtedness of said Ball to Hughes.

The counsel of Hughes, Heiskell, Dudley & Co., and Marshall, then offered as a witness Spencer Ball himself, to whose admission to testify, the counsel for McAlister & Co. objected, at the time, on the ground of incompetency, but the court overruled the objection. Ball stated that before the 2nd of April, 1850 he had a running account with McAlister & Co. On that day he disposed of the Mary Blane and requested O'Flaherty to go with him to Mr. Crockett's office, he (Ball), being unacquainted with the purchasers. That O'Flaherty asked him if he had any use for the money, to which Ball replied, he had not, and that McAlister & Co. might have the use of the money and notes until he wanted them. That after crediting Ball with the cash payment of $2,000, McA. & Co. fell in his debt about $500. That he lent the notes, then taken, to McAlister & Co. After suit was brought Ball went to Mr. Wells to try to trade off the notes. McAlister & Co. were well advised of this. Witness told them that he could not stand it till fall, unless he got the notes discounted; to which they replied, that in that case, their names must be taken off the notes first....