Johnson v. Strader
| Decision Date | 30 June 1834 |
| Citation | 3 Mo. 359 |
| Parties | JOHNSON v. STRADER & THOMPSON. |
| Court | Missouri Supreme Court |
ON RE-ARGUMENT.
We have felt much difficulty in disposing of this cause, growing out of the state of the record and pleadins. When it was last argued, we inclined to think that a new trial improperly granted, could not be assigned for error, and that the plaintiff had lost his remedy by omitting to take the proper exceptions on the second trial in the Circuit Court. Further examination and more mature deliberation lead us now to a different conclusion. In exercising the superintending control and appellate power given to this court, we have uniformly encouraged the use of the writ of error as the most convenient and least exceptionable mode. We have held that it is error to refuse, improperly, to grant a new trial; to set aside a non-suit; or to grant a continuance. It is not perceived that any good reason exists for a distinction between the case in which the Circuit Court refuses improperly to set aside a non-suit, and that in which a new trial is improperly granted. In neither case are the rights of the parties concluded, or an injury necessarily and irreparably sustained by the unsound exercise of the discretionary power of the court. In both cases it is alike certain that the parties are improperly delayed and put to trouble and expense.
It seems to us, therefore, that the better doctrine is, that where the Circuit Court refuses improperly to set aside a non-suit, or where a judgment of non-suit well taken is improperly set aside, where a continuance has been improperly refused, or a new trial improperly refused or granted, the party injured may seek redress on writ of error in this court: when the facts are properly preserved in such cases, this court can see whether the Circuit Court has exercised its discretion soundly, and if we should think that has not been done we have then the means of redressing the wrong by reversing the judgment and placing the parties upon the ground they were compelled to abandon or were not permitted to occupy.(a) This makes it necessary to look minutely into the record of the first trial which had been thought unnecessary on the first decision in this court, in order to determine whether, upon the merits, the new trial was or was not improperly granted: the facts are sufficiently stated in the opinion delivered on the first argument of this cause. At the trial the defendants moved the following instructions: First. If the jury find from the evidence that at the time the contract was made for freighting the four boats mentioned in the deposition of Stephen B. Thrasher, there were one or more persons in partnership in the ownership of the boats freighted, the plaintiff cannot recover in this action. Second. If the jury find from the evidence that the boats were built by the plaintiff and another person or persons, in co-partnership as joint owners, it must be presumed that such co-partnership and joint ownership continued to the time of making the contract for the freight of said boats, and the plaintiff cannot recover, unless it is proved to the satisfaction of the jury that such partnership was dissolved, and that said plaintiff, at the time of making the contract for freight, was sole owner of the three boats numbered one, three and four. Third. If the jury find from the evidence that the plaintiff was not the sole owner of the four boats freighted, and that the contract for freight was entire for the whole four boats, the plaintiff cannot recover in this action. Fourth. If the jury find from the evidence that the contract made by Thrasher with the defendants for freight, was entire for the whole freight, then the plaintiff cannot recover in this action, if it appears to the satisfaction of the jury that any one or more of the boats belonged to any person other than the plaintiff. Fifth. If the jury find from the evidence that any person other than the plaintiff was the owner of one or more of the boats, and that such owner and the plaintiff put their boats together for the purpose of being freighted and navigated together, and Thrasher was the agent of all the owners, authorized to engage freight for all the boats in one contract, that he did make a contract entire for the whole freight, and navigated and conducted said boats together in one adventure or voyage, the plaintiff cannot recover. Sixth. If the jury find from the evidence that the contract for freight was made by Thrasher as agent for the plaintiff, and not of any other person; and that such contract was entire for the freight of the whole four boats, then the jury ought to allow to the defendants a credit for the value of the lead not delivered, unless it appear to the satisfaction of the jury that the lead was lost by the unavoidable dangers of the river. Which instructions the court refused to give, but instructed the jury as follows: First. The ownership of the boat or boats gives the right to recover the freight. Second. That although the contract was made by Thrasher at the same time with defendants for freighting all of the four boats, yet the contract enures for the benefit of the owner or owners respectively, and each separate owner may recover against the defendants Third. That the question to Thrasher whether the boat was lost by the unavoidable accidents or dangers of the river was an improper one, and he was not competent to decide that point; and that such question and answer ought not to go to the jury. Fourth. That if the jury find from the evidence a partnership between plaintiff and one or more persons as to the ownership of the boats in the declaration mentioned, they ought to find for the defendants.
The defendants excepted to the opinion of the court in refusing to give the instructions prayed for, and also in giving the instructions which were given The plaintiff then prayed the court to give the jury the following instructions First. That if the jury should find that Whiting Johnson was the only person known to the defendants at the time of making the contract for freight, but that Smith was the owner of one of the boats, Smith can sue for the freight ch his boat carried, and Johnson for the residue of the freight. Second That no damage which the defendants may have sustained by the sinking of flat-boat number 2 can be offset in this action. Third. That the plaintiff is entitled in this action to recover the amount of freight agreed upon for so much lead as he delivered at St. Louis, deducting what has been paid to him. Which instructions were accordingly given and excepted to by the defendants.
The jury found a verdict for the plaintiff, which, upon motion of the defendants' counsel, was set aside and a new trial awarded, to which the plaintiff excepted; and it is now to be seen whether or not the new trial bught to have been granted on the ground that the Circuit Court erred in giving or refusing to give instructions.
The defendants' first instruction was properly refused, the...
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