Lee v. Murray

• Decision Date: 31 October 1848
• Citation: 12 Mo. 280
• Parties: LEE AND OTHERS v. MURRAY.
• Court: Missouri Supreme Court

12 Mo. 280

LEE AND OTHERS

v.MURRAY.

Supreme Court of Missouri.

October Term, 1848.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

This is an action on the case brought in the St. Louis Court of Common Pleas to the September term, 1846, in which the appellee, plaintiff below, obtained a verdict against the appellants, defendants below, for $541 92. The appellants moved to set aside the verdict, assigning for reasons the admission of incompetent evidence, and the ordinary reasons for a new trial. But the court below overruled this motion and rendered judgment for the appellee, and the appellants, defendants below, appealed to this court. The first count in the plaintiff's declaration states in substance that the appellants being the owners with one John P. Moore, of the steamboat Brunswick, authorized said Moore to sell the bar of the beat to appellee, for the sum of $500 in cash, and $300 to be paid upon request. That appellee thereupon took possession, and furnished and used the said bar. And that on the 20th of May, 1846, the appellants with intent to injure the appellee, wrongfully removed him from and took the possession of said bar themselves. The second count states that the appellee being lawfully possessed of the bar of said steamboat and entitled to keep therein, and to sell such articles as are usually kept and sold by barkeepers on steamboats, and from the sale of which he derived large profits, the appellants, on the 20th of May, 1846, did wrongfully enter into said bar and remove the property of appellee therefrom, and hindered him from having possession and enjoyment thereof. The third count is in substance the same as the second. The fourth count sets out that the appellants together with one John P. Moore, on the first day of August, 1844, being owners of the steamboat Brunswick, were desirous to sell the bar of said boat, and that appellants on 1st August, 1844, offered the same to the appellee and deceitfully represented to him that said steamer would be employed as a packet boat between the city of St. Louis and the town of Brunswick, on the Missouri river, and the appellee confiding in said representation, the said steamer would be so employed, did purchase the bar thereof at and for the price of $800. But the said appellants contriving to injure appellee, immeditately after and ever since, employed said boat in running between St. Louis and New Orleans, in Louisiana. It is also averred that the profits accruing to the barkeepers of such boats as are employed in running between St. Louis and Brunswick are much greater than of those plying between St. Louis and New Orleans, and that in consequenee the appellee suffered damage. The issue was upon the plea of not guilty. On the trial the appellee, without having given a release to the witness, offered the deposition of John P. Moore in evidence, to prove the sale of the bar of the steamer Brunswick to himself, it appearing upon the face of the deposition that before and at the time of such sale, said Moore was a joint owner with appellants of said steamboat, but that he had sold out his interest before the putting the appellee and his goods off the boat. To the admission of this deposition appellants objected, but the court below overruled the objection and allowed the deposition to be read in evidence, and the appellants excepted. Afterwards appellee produced one J. W. Allen as a witness, who stated on his voir dire that he had no interest in the result of this cause, and then he was sworn to testify as a witness on the part of the appellee. After he had proceeded a while in his testimony, he stated that on the 9th of May, 1845, he became a joint owner with the appellants and John P. Moore, of the steamer Brunswick, and that he continued to be such joint owner, until the month of November, 1846, when he sold his interest to Jas. W. Finney. At this point the counsel of appellants objected to said witness' being allowed to testify further in the cause, and also moved the court to instrct the jury that the testimony of said witness already given was illegal and ought to be disregarded by them, which objection and motion the court below overruled, and the appellants excepted and appealed. Plaintiff below offered evidence tending to prove the disturbance of Murray in the enjoyment of the bar by defendants below.

POLK, for Appellants.

1st. The main question in this case arises upon the allowing by the court below of the deposition of John P. Moore to be read in evidence to the jury-- the question upon the admissibility of the witness, Allen, being exactly the same. The fourth count of the declaration, though in form a count in case, is in truth based upon a contract between the parties for the sale of the bar of the steamer Brunswick. Just as an action on the case may be, and often is, brought against the common-carrier, when an action of assumpsit might also have been sustained, or an action on the case for deceit in case of false warranty, when an action might have been brought upon the contract. My first proposition is, that when a party may upon a given state of facts maintain an action of either case or assumpsit, the rules of evidence are the same in either form of action. He cannot change the rules of evidence by changing the form of action. Upon the same state of facts between the same parties, the rules of evidence remain always the same, whatever may be the form of action. The scope and amount of evidence may be varied by changing the form of the action, but not the rules governing the introduction of the evidence and its admissibility. So too a change of the form of the action may change the name of the defense, 1 Chitty's Pl. Forms of Action, but never the rules of evidence.

2nd. Now if this action had been assumpsit for the breach of the contract made when the bar was sold, that the boat should run between St. Louis and Brunswick, it can hardly be denied that the deposition of Moore would have been incompetent and illegal. The plaintiff below to make out his case, would have been compelled to prove the contract and its breach, and also that it was made with the defendants. The witness he introduced for the purpose of proving that the defendants were owners of the Brunswick, and as such, had entered into the contract for the sale of the bar, was himself an owner of the boat jointly with the defendants. Now the witness, Moore, being a joint owner of the boat, could not be competent to prove that the defendants were joint owners, in order thereby to subject them to a recovery. Hood v. Dixon, 7 Mo. R. 414; Purviance v. Dryden, 3 Serg. &...