McLean v. Thorp

• Decision Date: 31 May 1836
• Citation: 4 Mo. 256
• Parties: MCLEAN, ADM'R OF BROCKMAN, v. THORP.
• Court: Missouri Supreme Court

4 Mo. 256

MCLEAN, ADM'R OF BROCKMAN,

v.THORP.

Supreme Court of Missouri.

May Term, 1836.

APPEAL FROM THE RANDOLPH CIRCUIT COURT.

WASH, J.

Thorp, the appellee sued Brockman, the intestate, in the Randolph Circuit Court, in an action of assumpsit, for money had and received. The defendant pleaded non-assumpsit, and the statute of limitations. Pending the suit in the Circuit Court, Brockman died, and the suit was revived against McLean, his administrator. At the trial in the Circuit Court, the plaintiff below got judgment, from which McLean appealed to this court; and at the September term, 1833, the judgment of the Circuit Court was reversed and the cause remanded for a new trial.^(a) Upon the second trial, Thorp again got judgment, to reverse which McLean has come again with his appeal to this court.

From some inadvertence of the plaintiff or of the Circuit Court, or some misconception of the opinion of this court, delivered at the September term, 1833, the record presents now the very point upon which mainly it was then reversed and remanded. It might suffice, therefore, to refer to the former decision; but many other important questions are fairly raised, and have been ably argued--some of which are essential to the rights and future government of the parties in this suit, and should therefore be settled. Such and such only, we will endeavor to notice briefly, without attending at all, to the order in which they have been raised.

1st. A motion was made by the defendant's counsel in the Circuit Court, when the cause was called for trial to quash the dedimus under which certain depositions of the plaintiff had been taken in the State of Kentucky. An act to provide for the taking of depositions in civil cases (Rev. Code, p. 323) authorizes “the court in which the action is pending, or the clerk thereof in vacation, on the application of the party wishing to use the testimony of a witness residing out of the State, to award and issue a commission under the seal of the court to any judge or justice of the peace, of any State, Territory, Kingdom or Empire, authorizing him to cause to come before him such person or persons, as shall be named by either party, his attorney or agent,” & c. The commission or dedimus in this case was directed to any judge or justice of the peace, for the county of Clark, in the State of Kentucky, &c., authorizing such judge or justice “to cause to come before him such person or persons as shall be named by the plaintiff, his agent or attorney,” &c. Depositions are the creatures of the statute and must come in the form and mode prescribed. It is no answer to say that both parties may take their commissions, or that it does not appear that the defendants wished to examine any witness under the dedimus issued for the plaintiff. The dedimus was not such as the law prescribes, and conferred no authority. The motion to quash was, therefore, improperly overruled.

2nd. The next question we will consider grows out of the instructions by the court to the jury, “to allow interest at the rate of six per centum per annum, from the time they believed the defendant received the money of the plaintiff.” The defendant acting as agent and trustee for certain of the children and grand children of Joseph Embree, deceased, under a deed of gift, executed by said Embree in 1818, sold and disposed of certain property for the benefit of Embree's children and grand children. The property was sold in 1818 or 1819, on a credit of 9 and 12 months. When the monies arising from the sales of this property came to the defendant's hands, and how or by whom the collections were made, does not appear. The plaintiff, in the year 1818, intermarried with the grand daughter of Joseph Embree, and in right of his wife, claims the portion coming to her from the property sold by the defendant. The defendant and Joseph Embree both resided in Clark county, in the State of Kentucky, when the deed was made by Embree and the property sold by Brockman, and Brockman continued to reside there until 1827, when he removed to Missouri, where in 1831, the plaintiff instituted this action to recover his wife's portion--no demand was proved prior to the institution of the suit, and it was insisted at the trial below, and is now argued in this court, that if the defendant is liable at all, he is bound to pay interest only from the institution of the suit, or at most, only from the time the new promise or acknowledgment was made, &c.

The statute regulating the interest of money, provides that creditors shall be allowed to receive interest at the rate of six per centum per annum in certain specified cases, and among others enumerated are the cases in which “money has been received to the use of another and retained without the owner's knowledge; and on money withheld by an unreasonable and vexatious delay of payment.” It is conceded that this last case is the one under which the plaintiff must recover interest, if at all. The counsel for the appellant insists, that under this provision of the statute, it is for the jury to determine whether the money has been unreasonably and vexatiously withheld, and that the Circuit Court erred in concluding the jury by the instruction given to allow interest from the time they believe the defendant received the plaintiff's money, &c. We think this objection valid and that the court erred. The money having come to the hands of the defendant as an agent or trustee for the plaintiff's wife, he was not even liable to an action before demand made. We think, too, that if the money had been received by the defendant, not as agent or trustee, it was still the province of the jury to determine from all the circumstances, whether the payment of it had been unreasonably and vexatiously delayed.

3rd. The third and last point, we shall attempt to dispose of at present, is one of much difficulty, and on which we are not all entirely agreed It is insisted by the counsel for the appellee, that the proof in the cause was sufficient to take the case out of the statute of limitations, and that the Circuit Court decided correctly in refusing to grant a new trial, and in refusing to give the instructions prayed by the defendant on this point. The 16th instruction prayed for is, “that the plaintiff cannot recover, without proving an express promise to pay on the part of said Brockman, within five years next before the commencement of this suit.” The substance of some three or four other instructions asked and refused, is that “there is no sufficient evidence before the jury to take the case out of the statute of limitations.” The general doctrine on this subject in the English courts, has vibrated from one extreme to the other, and we shall not attempt to reconcile or examine the various decisions. After having virtually repealed the statute by extending its constructions, they are becoming of late years, fully sensible of their errors, and are struggling to get back to a more reasonably strict construction. No express adjudication has yet been made upon our statute, which in this respect is precisely like the English statute 21st James II, which has been adopted in Kentucky and most of the other States; and this court is left free to settle the...