Mills v. Sampsel
| Decision Date | 31 August 1873 |
| Citation | 53 Mo. 360 |
| Parties | LUCY M. MILLS, Executrix, &c., Respondent, v. JOSEPH P F. SAMPSEL, et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Livingston Circuit Court.
L. T. Collier, for Respondent.
This action was brought to recover an amount charged to be due to plaintiff from defendants for the rent of a storehouse for six months, at fifty dollars per month. A credit was allowed on the account sued on for fifty dollars, paid by defendants in repairing the building.
The defendants file separate answers, in which they each deny the partnership between them, and deny the renting of the house as charged in the petition or any indebtedness therefor. A trial was had by the court, a jury having been waived.
It appeared from the evidence produced at the trial, that the firm of J. B. F. Sampsel & Co., consisted of Joseph B. F. Sampsel, Jr., William H. Sampsel and D. L. Sampsel; that Joseph B. F. Sampsel, Sen., was not a member of the firm. The evidence on the part of the plaintiff tended to prove, that the plaintiff rented the house to said firm upon the terms stated.
On the part of the defendant the evidence tended to prove, that the house was rented by said firm by the month, at fifty dollars per month, and had been occupied by them only two months; and the amount of the rent due for that time had been tendered to the plaintiff.
The court after hearing the evidence found the issues in favor of the defendant, Joseph B. F. Sampsel, Sen., and rendered judgment in his favor, and found the issues as to Joseph B. F. Sampsel, Jr., in favor of the plaintiff, and rendered judgment in favor of the plaintiff against him for the sum of two hundred and fifty dollars.
The defendants in due time filed their motion for a new trial, setting forth as grounds thereof all of the usual causes assigned in motions for new trials, as well as that they had since the trial discovered new testimony not before discovered. The motion was supported by affidavits filed with the motion. This motion was overruled, and the defendant excepted.
It should have been stated, that at the close of the evidence, the court, at the request of the plaintiff, made several declarations of law, to which the defendants also excepted.
The defendant asked the court to declare the law to be, “That if plaintiff attempted to rent or dispose of the premises in controversy during the time claimed in his petition, then such act on the part of plaintiff was a nullification of any contract made between the parties even if such contract should be found to have existed, still the court must find for the defendant from and after the time such control over the said premises was assumed by plaintiff.”
“That if the court finds that J. B. F. Sampsel was not a member of the firm of J. B. F. Sampsel & Co., the plaintiffs cannot recover.”
These declarations of law were refused and the defendant excepted.
The case comes to this court by appeal.
The evidence in this case tended to prove the plaintiff's demand, and the court having found for the plaintiff as to one of the defendants we have nothing to do with the facts in the case.
The declarations of law made by the court were to the effect, that if the contract of renting was made by the firm of J. B. F. Sampsel & Co., or any member thereof, and if said firm retained possession and control of the house rented, up to the expiration of the time for which it was rented, then the finding should be in favor of the plaintiff as against the defendant, J. B. F. Sampsel, Jr.
2nd. That if an employee of the said firm made the contract of renting with plaintiff with the knowledge of, or by the direction of, said firm, or any member thereof ratified or assented to the contract, then it was binding on the firm, and the court must find for plaintiff as against said defendant, Joseph B. F. Sampsel, Junior.
3rd. That if the employee...
To continue reading
Request your trial
-
Hume v. Hopkins
... ... opposite result on its merits. Mayor v. Burns, 114 ... Mo. 426; State v. Wheeler, 94 Mo. 252; Mills v ... Sampsel, 53 Mo. 360 ... Macfarlane, ... J. Barclay, P. J., Brace and Robinson, JJ., concur ... ... ...
- Gharst v. St. Louis Transit Company
-
Mayor v. Burns
... ... became aware of the new evidence after the trial, nor could ... he have become aware of it before. Goff v ... Mulholland, 33 Mo. 203; Mills v. Sampsel, 53 ... Mo. 360; State v. Wheeler, 94 Mo. 252; Howland ... v. Reeves, 25 Mo.App. 458. (4) The court erred in giving ... respondent's ... ...
-
Mayor, Etc., of Town of Liberty v. Burns
...and productive, on another trial, of an opposite result on the merits." To the same effect, see Goff v. Mulholland, 33 Mo. 203; Mills v. Sampsel, 53 Mo. 360; State v. Wheeler, 94 Mo. 252, 7 S. W. Rep. 103; State v. McLaughlin, 27 Mo. 111. It is also well settled that the object of the newly......