McCune v. Erfort

• Citation: 43 Mo. 134
• Parties: JOHN S. MCCUNE, Respondent, v. AUGUST C. ERFORT et al., Appellants.
• Decision Date: 31 October 1868
• Court: United States State Supreme Court of Missouri

43 Mo. 134

JOHN S. MCCUNE, Respondent,

v.AUGUST C. ERFORT et al., Appellants.

Supreme Court of Missouri.

October Term, 1868.

Appeal from St. Louis Circuit Court.

Krum, Decker & Krum, for appellants.

I. The court erred in admitting evidence of the difference in value between gold coin and the legal-tender notes of the United States. If defendants owed plaintiff the debt in coin, he could recover only money; and the court will not lend itself to depreciate or allow to be depreciated one kind of money of the United States at the expense of another kind of money. (Henderson v. McPike, 35 Mo. 255.)

II. But if the court holds otherwise, then the freight money, which was to be retained by the appellants out of the gold, must also be estimated in the same currency. The carrier has a lien for his freight on the goods; the factor, a lien on the proceeds of the goods in his hands. Erfort, Busch & Co. were entitled to retain their per centage for freight and commission out of the gold itself.

III. The court erred in reducing the counter claim of defendants to $732.60. The measure of damage is full pay for what the carrier could have taken. (Burrow v. Pound, 29 Mo. 436.)

IV. The allowance of interest on the amounts contained in the second and third causes of action, by the court, is unwarranted. The action of the court in admitting said claims rests wholly on the offer made in the answer, and should therefore have been confined to that offer without interest.

V. Where several causes of action are united in the same petition, a verdict must be found, and damages assessed, upon each cause of action separately. The statute expressly enjoins this practice, and a judgment rendered in disregard of the statute must be reversed. (Pitts v. Fugate, 41 Mo. 405, and cases there cited.)

Ewing & Holliday, and Sharp & Broadhead, for respondent.

BAKER, Judge, delivered the opinion of the court.

The petition contains three causes of action, separately stated. The first count alleges that the defendants, in June, 1865, in the Territory of Montana, agreed with plaintiff to transport for him, from Fort Benton to Virginia City and Helena, in said Territory, a certain lot of goods, and to sell said goods on account of plaintiff for gold dust, for which plaintiff agreed to pay at the rate of ten cents per pound for goods taken to Virginia City, and six cents per pound for goods taken to Helena; that defendants did transport 51,825 pounds of goods to Virginia City and 55,279 pounds to Helena, and sold and exchanged the goods taken to Virginia City, and received 739 oz. 5 dwt. and 20 grs. of gold dust, which they converted to their own use. The second count alleges that the defendants agreed that, if the plaintiff would pay a debt due from them to Carroll & Steele, at Fort Benton, they would deliver to him at Virginia City 17 oz. 1 dwt. and 7 grs. of gold dust; that plaintiff did pay said debt, but the defendants never delivered the gold dust. The third count alleges that Phillips and Gardner were, in June, 1865, indebted to the plaintiff 33 oz. 12 dwt. and 21 grs. of gold dust for freight; that the defendants being about to transport the goods, for which the freight was due, to Virginia City, it was agreed between them, the plaintiff and the said Phillips and Gardner, that the defendants should retain out of the proceeds of the sale of said goods the quantity of gold dust above mentioned, and deliver the same to the plaintiff; that the defendants did receive for said goods the quantity of gold dust aforesaid, and have failed and refused to deliver the same to the plaintiff.

The answer sets up a counter claim, in which it is stated that the plaintiff agreed with the defendants, who were engaged in the business of carrying freight from Fort Benton to Virginia City and Helena, in Montana Territory, that he would furnish to them all the freight that he then had, or would have during the year 1865, at Fort Benton, for transportation, and pay therefor at the rate of ten cents per pound to Virginia City and seven cents per pound to Helena; that the defendants did carry 51,825 pounds of freight to Virginia City and 55,279 pounds to Helena; that the plaintiff failed and refused to furnish them for transportation over 100,000 pounds of the cargo he then had at Fort Benton, by reason of which they were damaged to the amount of $4,500, for which they ask judgment. The defendants deny that they agreed with the plaintiff to pay him 17 oz. 1 dwt. 7 grs. of gold dust if he would pay to Carroll and Steele a debt due from defendants to them; but they say that they were indebted to Carroll and Steele in the sum of $307.17, which they agreed to refund to the plaintiff if he would pay; that he did pay said sum in the month of July, 1865; and that they are now ready and willing to repay the same to him.

The answer admits that the defendants received the sum of $434.55 from Phillips and Gardner,...