Kennerly v. Martin

• Decision Date: 31 July 1844
• Parties: KENNERLY v. MARTIN.
• Court: Missouri Supreme Court

8 Mo. 698

KENNERLY

v.MARTIN.

Supreme Court of Missouri.

July Term, 1844.

APPEAL FROM THE ST. LOUIS COURT OF COMMON PLEAS.

SPALDING and TIFFANY, for Appellant. 1. The record from the Court of Probate ought to have been admitted as evidence for the defendant below, because it could properly have been proved a true copy by oral testimony, and because it was relevant testimony. 1 Starkie's Ev. 155; Peake's Ev. 28, 29; Roscoe's Ev. 54; 1 Phillips' Ev. 309. These references show, that a sworn copy of a record was admissible evidence before the jury in the present case. 6 Mo. R. 501, McKinney's Adm'r v. Davis. This case shows that the allowance of the demand in the County Court was a judgment, and had all the legal consequences of a judgment of a court of record, and was a bar to any other suit for the same, and therefore was legal testimony. 2. The instruction asked by defendant below ought to have been given, for the widow is not liable for the debts of the husband, even on an express promise to pay them, unless there be a good consideration for that promise, and the promise itself be in writing. Chitty on Contracts, 6, 7; Comyn on Contracts, 8-10; 7 Term R. 350, note A, as to consideration; Rev. Code, p. 117, § 1, that an assumpsit to pay the debt of another must be in writing. 3. The instruction given was wrong; it assumes that the plaintiff's services, for which he sued, were rendered to the defendant personally, and to her slave, in the husband's life-time, and then declares it to be law that the subsequent promise bound her; whereas there is no proof that the services were rendered to her or to her slave, but, on the contrary, were rendered to the husband; and even had the proof been that the services were rendered to her personally, yet the claim for compensation would have been a debt of the husband.

POLK, for Appellee. 1. The instruction given by the court to the jury on the trial of this cause, was the correct law of the case. 5 Taunt. 36 (1 Eng. Com. L. R. 10); 1 Chitty's Pl. p. 66, side-paging. 2. The Court of Common Pleas did right to refuse to give the instructions prayed by defendant's counsel on the trial of the cause. 3. The court below, in excluding from the jury the writing offered by defendant purporting to be a copy of a judgment of the County Court, fell into no error that ought to be sufficient to reverse the judgment of that court. 4. The judgment of the court below ought not to be reversed because that court overruled the defendant's motion for a new trial.

NAPTON, J.

This was an action of assumpsit, brought by appellee, to recover the amount of a medical bill, and the plaintiff had a verdict and judgment for $118 53. Upon trial, a bill of particulars was furnished by the plaintiff, consisting of items of medical attendance, medicine and professional services, from the 21st of August, 1839, to January 18, 1841. Of this amount, $99 accrued in the life-time of James Kennerly, the husband of Eliza M. Kennerly, the defendant. It appeared, that so much of the bill as consisted of items for services rendered in the life-time of James Kennerly had been presented to the County Court, and allowed against the estate of the said Kennerly. The professional services charged against the defendant in the bill of particulars, which had been rendered in the life-time of James Kennerly, were services rendered to the defendant herself and two slaves. James Kennerly died in August, 1840, insolvent.

After the death of James Kennerly, a collector of the plaintiff called on the defendant (Mrs. Kennerly) with two bills for medical services, embracing not only the services rendered since the death of Kennerly, but medical attendance upon Mrs. K. during her husband's life-time, and upon her daughters. The bill were left at her house. Shortly afterwards, the collector called for payment, when the defendant told him to call on Mr. F. W. Risque with the two accounts, and he would settle them, he being her agent, or attorney.

The defendant upon this testimony, asked the court to instruct the jury, first, that they should exclude from their consideration all items for services rendered during the life-time of James Kennerly; and, second, that the defendant was not liable, upon any promise, to pay the debts of James Kennerly, unless made in writing. These instructions the court refused to give, but instructed the jury: “That if they believed from the evidence, that the defendant, after the death of her husband, expressly promised to pay the plaintiff for services rendered to her personally, and to her slaves, they should find for the plaintiff, although such services were...