Lewin v. Dille

• Decision Date: 31 October 1852
• Citation: 17 Mo. 64
• Parties: LEWIN, Respondent, v. DILLE & AVERY, Appellants.
• Court: Missouri Supreme Court

17 Mo. 64

LEWIN, Respondent,

v.DILLE & AVERY, Appellants.

Supreme Court of Missouri.

October Term, 1852.

1. Where a suit is commenced by attaching the defendant's property, the plaintiff may take depositions before summons served or publication completed.

2. The statement of the officer taking depositions, in the caption, that the taking of them was postponed from the day fixed in the notice until the following day, “by consent of parties,” is evidence of such consent.

3. A change of venue is properly refused, unless the party applying for it has complied with the requisitions of the statute.

4. A copy of a paper is not admissible in evidence, when the original is not accounted for and no notice has been given to produce it.

5. It is no error for a court to hold a special term in one county, on a day fixed by law for the holding of court in another county in the same circuit. The statute which says that no special term shall interfere with any other court to be held by the same judge (R. C. 1845, chap. 45, sec. 54,) is merely directory.

6. Where one party introduces the books of the opposite party in evidence for one purpose, the latter may afterwards use them in evidence for a different purpose in the same suit.

7. A written contract cannot be read in evidence until its execution is proved.

8. Where an agent disobeys the instructions of his principal, the latter, in a suit between them, will not be held to have ratified his acts because of a failure to notify him of his dissent.

Appeal from Madison Circuit Court.

This was an action of assumpsit on the common counts, begun in 1848. The defendants were owners of the Buckeye Copper Mine, in Madison county, and Ebenezer G. Pomeroy was their agent to superintend and manage the same. As such agent, he kept a running account with the plaintiff, who was a merchant. This suit was for a balance due on account, and also for the expenses and salary of plaintiff for a trip to England, under a contract with Pomeroy to sell ore for defendants.

The defendants being non-residents, an attachment issued and was levied on their land. At the return term, the defendants not appearing, an order of publication was made. Before the publication was completed, the depositions of William W. Fleming and Theophilus Merry were taken by the plaintiff under a commission, pursuant to notice posted up in the clerk's office. A motion to suppress these depositions was overruled. A motion to suppress the deposition of George M. Davidson, taken on behalf of the plaintiff, was also overruled. The 19th of the month was the day fixed by the notice for taking this deposition. The justice who took it stated in the caption that it was taken on the 20th, to which day it was postponed “by consent of parties.” Motions were subsequently filed to strike out parts of these depositions, which were also overruled.

On the first day of the March term, 1852, N. W. Watkins, counsel for defendants, presented an application for a change of venue, in support of which, he presented his own affidavit, stating that some ten or twelve days previously, he had received a letter from one of the defendants, inclosing a petition for a change of venue, verified by affidavit, which had been accidentally destroyed in his possession, except the certificate to the official character of the officer in Ohio, before whom the affidavit was made, which he (Watkins) annexed to his affidavit as an exhibit; that in the said petition the defendant set forth two of the grounds specified in the statute for a change of venue; that upon the receipt of said petition, he (Watkins) had written to his associate counsel to notify the plaintiff of their intention to apply for a change of venue, but that he had learned that his letter was not received; and that he (Watkins) had notified the opposite party, in open court, on the first day of the term. This application was overruled.

On the trial, the plaintiff offered in evidence the contract between Pomeroy and himself about the trip to England, which, it appears from the record, was admitted without any preliminary proof of its execution by Pomeroy. The defendants introduced the books of the plaintiff in evidence, to show that the accounts were kept against Pomeroy and not against them. The plaintiff, in rebuttal, was then allowed to read from his books the whole account in evidence, to which defendants excepted. The defendants also offered a paper purporting to be a copy of the instructions from Pomeroy to plaintiff, on his departure for England, first proving the same to be in Pomeroy's handwriting. There being no further proof offered touching the paper, it was excluded by the court, to which an exception was taken.

During the trial of the cause, on the fourth day of the term, the term being about to expire, the court ordered a special term to be held on the next day, which was the day fixed by law for the holding of court in Bollinger county, in the same circuit. To this the defendants excepted. On the next day the trial was concluded and there was a verdict for the plaintiff. Several instructions were given and refused, the only one of which that is deemed material is set out in the opinion of the court.

John W. Noell, for appellants. 1. The application for a change of venue ought to have been granted. The notice was reasonable under the circumstances. The proof of the loss of the original petition and of its contents placed the defendants on the same footing as if it had been produced. 6 Mo. Rep. 267. R. C. 1845, chap. 182, secs. 1, 2. 2. The deposition of Davidson should have been suppressed. A verbal consent before the officer would not authorize the taking of depositions on a day without a notice, even if his statement were evidence of such consent, which is denied. 3. The depositions of Fleming and Merry, taken in Camden, New Jersey, under a notice set up in the clerk's office in Madison county, Missouri, before the defendants had any actual or constructive notice of the commencement of the action, ought to have been suppressed. The order of publication did not require them to appear or take any steps in their defence until the March term, 1849. The plaintiff did not file his bill of particulars until March term, 1849, and until then the subject matter of the suit was not properly before the court, and there was not only no issue, but no fact to which the evidence could relate. R. C. 1845, tit. Depositions. Greenl. Ev. vol. 1, p. 120. 4. The verdict is void, for the reason that the Circuit Court could not legally hold a special term on the day fixed by law for the holding of the regular term in Bollinger county. R. C. 1845, chap. 45, sec. 54. It is submitted that the construction given to the statute of 1825, in the case of Samuels v. State, is erroneous, and, besides, the statute of 1845 is materially different. 5. The court erred in admitting the paper purporting to be a contract between plaintiff and Pomeroy, without proof of its execution. Even if proved, it was no evidence of defendant's liability, but the contrary. 6. The instructions of Pomeroy to Lewin should have been admitted. The fact that it was in Pomeroy's handwriting and in possession of defendants' counsel, stamped it as authentic. 7. The court erred in permitting plaintiff to give in evidence the entries on his own books. They were introduced by defendants to prove an isolated fact, and the plaintiff could only use them as evidence on that point. 8. The sixth instruction given for plaintiff is erroneous. Amory v. Hamilton, 17 Mass. Rep.

M. Frissell, for respondent. 1. The application for a change of venue was properly overruled. 2. The deposition of Davidson was properly admitted. The justice states that the taking was postponed by consent, and if there was no consent, it could easily have been shown. 3. The depositions of Fleming and Merry were properly admitted. The suit was clearly pending within the meaning of the statute, and notice was given in the manner prescribed by law, when defendants are non-residents. Swift v. Crocker, 21 Pick. Boughton v. Bruce, 20 Wend. 234. Gardner v. Webber, 17 Pick. 407. 4. As to the power of the Circuit Court to hold the special...