Hurst v. Robinson

• Decision Date: 31 January 1850
• Citation: 13 Mo. 82
• Parties: HURST & SALMON v. ROBINSON.
• Court: Missouri Supreme Court

13 Mo. 82

HURST & SALMON

v.ROBINSON.

Supreme Court of Missouri.

January Term, 1850.

ERROR TO MORGAN CIRCUIT COURT.

Ezekiel J. Salmon and John Hurst, who were partners in blacksmithing, carrying on their business under the firm of Hurst & Salmon, on the 28th of November, 1846, commenced suit before a justice of the peace on a blacksmithing account against the defendant in error, Robinson, amounting to $34 33. A trial was had before the justice, and the plaintiffs in error obtained judgment, from which judgment Robinson appealed to the Circuit Court of Morgan, in which court a trial was had at the October term, 1847, which resulted in a verdict for the plaintiffs in error, which verdict was at the same term of the Circuit Court set aside and a new trial granted. At the Oetober term, 1849, another trial was had, and the case was submitted to the court sitting as a jury, which resulted in a verdict, and judgment for the defendant in error. A motion for a new trial was made and overruled, and exceptions duly taken. While the case was pending in the Circuit Court, Robinson caused the deposition of one of the plaintiffs, Hurst, to be taken, which deposition was by the court suppressed, but on the trial, the court permitted Robinson to read the admissions of Hurst, which were contained in his suppressed deposition. At the time the deposition was taken, the partnership had long previously been dissolved. On the trial of the cause, the last time, various instructions were asked, both by the plaintiffs in error, and defendants in error. The admission of Hurst's declarations as contained in his suppressed deposition, the giving of the second instruction asked by the defendant in error, and the refusal of the first seven instructions asked by the plaintiff in error, and the refusal of the court to grant a new trial, are assigned for errors.

KOWNSLAR, for Plaintiff, cited: 3 Kent, 43; Bell v. Morrison, 1 Peters' R. 371, 372-3-4; 3 Johns. R. 537; 15 Johns. R. 423 9 Cowen, 59, 433, 434; Little v. Ferguson, 11 Mo. R. 598; 9 Cowen, 434.

HAYDEN, for Defendant.

RYLAND, J.

The questions which appear to this court of most importance, are those arising from the instructions given, and the admission of the statement of the plaintiff, Hurst, that the account against the defendant, Robinson, had been fully settled. We shall pay no attention to the question, which the plaintiff in error endeavored to raise in the court below, about the custom of paying for blacksmith work in this country in money only; nor shall we trouble ourselves to notice the power, authority or right, of one partner in the blacksmith business to make agreements with the farmers for their custom, by contracting to take what is called in this case, “farm produce,” for such blacksmith work as shall be done for them, in the shop of which he is partner. The question as to the admission of the statement of the plaintiff, Hurst, which he had made in writing, under oath, in the form of a deposition, is the most important one in this case. It seems that the defend ant, Robinson, had taken the deposition of the plaintiff, Hurst, one of the partners in the blacksmith business; which deposition had been suppressed by the court below. The defendant, Robinson, then proposed to read this statement not as a deposition, but as a confession or admission of facts by one of the plaintiffs in this case. He proved the...