Martin v. Greene

• Decision Date: 31 July 1847
• Citation: 10 Mo. 652
• Parties: MARTIN v. GREENE.
• Court: Missouri Supreme Court

10 Mo. 652

MARTIN

v.GREENE.

Supreme Court of Missouri.

July Term, 1847.

APPEAL FROM PLATTE CIRCUIT COURT.

WILSON & REES, for Appellant.

LEONARD & BAY, for Appellee. 1. The motion to dismiss the bill was properly overruled. The appellant, Martin, as master of the steamboat, was the confidential agent of the owners. 3 Kent's Com. 161. The appellee, Greene, being one of the owners of the boat, had a right to file a bill of discovery against Martin for an account of any property of his principal obtained by any improper means; and the court of chancery having jurisdiction for the discovery, will, to avoid multiplicity of writs, proceed to administer the proper relief. 1 Story's Eq., 468-9, 470. Besides, the conduct of Martin, in making false representations as to the affairs and concerns of the boat, was a gross breach of trust, and a fraud upon his principal. Such acts will always entitle the injured party to relief in equity. 1 Story's Eq., 325-6, 3rd ed. 2. The motion to dismiss the bill for want of jurisdiction, was made too late. The defendant should have demurred to the bill; by the answer, he has put himself upon the merits. 4 Johns. Ch. R. 290. 3. It is admitted that where the answer of a defendant is “positively, clearly and precisely” responsive to the matter stated in the bill, it is to be taken as true, unless it be contradicted by two witnesses, or by one witness and corroborating circumstances. But the answer of the defendant in this case is evasive and uncertain. He does not deny some of the material allegations in the bill; others he denies in a very evasive manner. His answer shows that he endeavored to leave false impressions upon the mind of the complainant as to the true condition of the affairs of the boat. Roundtree v. Gordon, 8 Mo. R. 24-5; Greenleaf on Ev. 297-8; 1 Phillips on Ev., 154-5. 4. The complainant was entitled to his share of the earnings of the boat, whether the amount was known at the time of the sale of his interest in the boat or not. He only sold his share of the boat, and not his share of the earnings. The answer does not deny this, but only denies that the defendant knew what the amount of the earnings was at the time of the sale, and calls upon the complainant for strict proof of the amount. This proof is furnished by the answer of the clerk. An answer professing a want of knowledge of the fact, only puts the complainant to prove it by one witness, or what is equivalent. Cowen & Hill's notes to Phillips on Ev., part 1st, p. 287, note 294. The defendant must state positively what he must have knowledge of, or the ordinary proof by one witness will overcome the answer. The defendant, from his situation as master of the boat, must have had knowledge of the condition of the affairs of the boat. At all events, it was his duty to inform himself of such matters.

NAPTON, J.

This was a proceeding on the chancery side of the Circuit Court of Platte county. The bill represented that the complainant, on the 15th June, 1843, was the owner of two-fourteenths of the steamboat Edna, and that one Frederick Marshall (whose interest he had purchased) owned one-fourteenth; that he was entitled, therefore, at that time, to three-fourteenths of the profits made by said boat, which amounted to $1,750 78. That the defendant was master of said boat at that time, and had been several years previously, and as such, was well acquainted with the condition of the boat and her liabilities and profits, and well knew that the net proceeds then on hand amounted to the sum before mentioned; that the complainant, anxious to learn the true condition of the affairs of said boat, about the time above specified, called on said Martin, when the latter fraudulently concealed the same from him, and represented that said boat was greatly indebted, and without any means of payment, and that there was no cash on hand, and at the same time proposed purchasing complainant's and Marshall's interest. That the complainant, confiding in these representations of his agent, the said defendant, sold to the said Martin his interest and the interest of the said Marshall, at a very reduced price, to-wit: for $575, and for the interest of said Martin in some lots in Platte City. That by virtue of said sale, the defendant retained all the share of the $1,750 75, which was then the clear profit of the boat, which the complainant and said Marshall were at that date entitled to. The bill proceeds to charge that the defendant, for the purpose of defrauding the complainant, had requested the clerk of the boat to “leg for him,” and to help him in lying; that defendant also told other and different persons, with the same fraudulent purpose, that said boat had on board no more money than wonld pay its debts, well knowing the same to be false The complainant charges that these facts are in the knowledge of defendant and therefore prays that he may be compelled to answer, and that he be decreed to refund the three-fourteenths of the profits, &c., and for general relief.

The answer of Martin admits the interest of complainant, and the sale, &c., but denies that at the date aforesaid (15th June, 1843), the boat was out of debt, but avers that it was in debt to a considerable amount, having been sued for damages, and threatened with suits--though defendant does not undertake to say how much indebtedness existed. The defendant denies that $1,750 78 was on hand, but does not know what amount of cash there would have been on hand if all debts had been settled. He admits that he was captain or master of said boat, and was as well and accurately informed of the true condition of the affairs of said boat as men acting in the capacity of captain or master usually are, but that he did not know or believe that there was or would be in cash on hand the said sum of $1,750 78, but that the same would fall greatly below that estimate. He admits that he was called upon by complainant for a disclosure of the true condition of the boat, at the time specified in the bill, but avers that he referred him to the clerk and books of the boat, and requested the clerk to furnish him with full information, and that the clerk afterwards told him he had so done. He denies all fraud. He avers that the town lots spoken of in the trade between complainant and him, were estimated at $2,000. He denies that he told the clerk to “leg for him,” &c., but says he told the clerk that if he would help, that a trade might be effected between him and Greene, but he was more anxious to sell than buy. He declares that complainant was anxious to sell, and accordingly took a trip down the Missouri with him, and whilst on the voyage, much conversation passed between them in relation to a trade, and the defendant offered to give complainant one hundred dollars if the complainant would make him a proposition to either give or take; and the said complainant refusing, the defendant offered to bet fifty dollars that he would take complainant's proposition, if he would make one, &c.

McCord, the clerk, testified, that on the landing of the boat at St. Louis (after the trip on which Greene came as passenger), the defendant came to his office and told him that complainant had proposed to sell him his interest, and that of his son in-law (Marshall) in the steamboat Edna, and requested him to examine the books of the boat and ascertain as near as practicable what amount of money was due said boat, what amount she owed, what amount was on hand, and the amount of profits on hand at the time. He did so, in the presence of the defendant. He then paid off the debts of the boat, and the defendant then requested the witness to “leg for him,” assist him, and induce the plaintiff to sell his interest, &c., and requested him to say nothing to complainant about the amount...