McNeeley v. Hunton

• Decision Date: 31 January 1857
• Citation: 24 Mo. 281
• Parties: MCNEELEY, Respondent, v. HUNTON, Appellant.
• Court: Missouri Supreme Court

24 Mo. 281

MCNEELEY, Respondent,

v.HUNTON, Appellant.

Supreme Court of Missouri.

January Term, 1857.

1. Held, in a suit brought by A. against B. for wrongfully seizing and selling, under an execution against C., certain horses alleged to have belonged to plaintiff as having been purchased for her by C. in making the purchases to the effect that he was purchasing the horses for himself, were admissible in evidence, together with evidence of the insolvency of C. at the time of said purchases, to show that the alleged agency was but a cloak to cover the fraud of C.

Appeal from Benton Circuit Court.

Wright, for respondent.

SCOTT, Judge, delivered the opinion of the court.

The witness, Whitlow, was properly directed not to answer the question put to him respecting what he had heard Burnes say, as it does not appear that any ground had been laid for such an inquiry in the previous examination of Burnes, who should first have been asked the question whether he did not make the declaration that he was purchasing horses for the government agent. We do not see on what ground the court refused to let the witness, Dozier, answer the question whether one of the six horses was not purchased by Burnes on a credit, who gave his note for it, with Dozier as security. Surely it could not have been on the ground that it did not appear that the horse, about which the inquiry was made, was one of the three claimed by the plaintiff. As the plaintiff maintained on the one hand that Burnes was her agent, and as on the other this was denied, and it was insisted that she was a mere screen to hide the fraud of Burnes, she could not assume that the property was hers, and that, therefore, the declarations of others should not affect her rights. This would be taking the matter in controversy for granted. The purchase of the whole number of horses, so far as the question of fraud was concerned, must be regarded as a single transaction, and whether Burnes was acting for the plaintiff in good faith, or was using her name in making his purchases as a cloak to his fraud, should have been submitted to the jury with all attending circumstances and declarations calculated to throw any light upon the questions. The declarations of Burnes, while acting as agent, were, as part of the res gestæ, evidence against the plaintiff. In ferreting out fraud, great captiousness against evidence, on the ground of its irrelevancy merely, is a suspicious circumstance, and induces the thought that such a...