Moore v. McCullough

• Decision Date: 31 August 1840
• Citation: 6 Mo. 444
• Court: Missouri Supreme Court
• Parties: MOORE & PORTER, IMPLEADED WITH REA & HUSTON, v. MCCULLOUGH.

6 Mo. 444

MOORE & PORTER, IMPLEADED WITH REA & HUSTON,

v.MCCULLOUGH.

Supreme Court of Missouri.

August Term, 1840.

That two continuances have been made in the same cause, and one of them at the instance of the party applying for a third, is no ground for a refusal of the application, when the materiality of the testimony is shown, and every degree of diligence that could be expected.

A witness should not be permitted to read from a copy of his deposition, which had been suppressed because it was taken ex parte and without notice.

APPEAL FROM THE CIRCUIT COURT OF COOPER COUNTY.

HAYDEN, for Appellants. 1st. That the Circuit Court erred in suppressing the deposition of Samuel Williams taken by defendants on the 18th of February, 1840, and filed in this cause. See 1 Philips' Ev. 226; 2 Caine's R. 131, Steinback v. Columbia Insurance Company, 1 Stark. 2nd part, 127-8-9. 2d. That the Court erred in refusing defendants a continuance of the cause for the want of the evidence of said Williams contained in the deposition. 3d. That the Court erred in refusing defendants leave to read the deposition of Luther Carter, and in rejecting the evidence of others offered by defendants to show that the bill of items of work done by complainant and Huston was too high, and that they were not fair, and much higher than customary for similar work. 4th. That the finding of the Court was contrary to law, equity, and the evidence given in the cause, and that the decree is one-sided, and not against all the defendants in the cause; and 5th. That the Court erred in overruling the defendant's motion for a new trial of the cause. See 1 Maddox Chancery, 405-6-7; Story's Equity, 6, 41, 47, 53; 1 Peters' Digest, 184., § 175; Peters' R. 276, Cathcourt et al. v. Robison, 3 Cowen, 504; Seymore v. Delaney, 2 Cowen, 139.

W. ADAMS, for Appellee. 1st. That the Court did not err in suppressing the deposition of Samuel Williams. Nowlin v. Foster, 4 Mo. R. 21. 2d. That the Court did not err in refusing to grant a continuance. 3d. That Huston was properly received as a witness. See 1 Phil. Ev. 63, in notes; 1 Johns. R. 556-576-7; Beebe and others v. Bank of New York; Trustees of Huntingdon v. Nicoll, 3 Johns. R. 566. 4th. There was no foundation laid in defendants' answer to open and surcharge the settlement alleged in the amended bill. 5th. That the settlement was conclusive and could only be opened upon the ground of fraud positively charged and proved, or for errors or mistakes specifically set forth and alleged in the answer. Fonblanque's Eq. 32 and 39, in notes. 1 Mad. Treatise, 102-3; Com. on Con. 473, in notes; 2 Marshall, 338; 2 Stark. Ev. 18, 19; Stoughton v. Lynch, 2 Johns. Ch. R. 217; Slee v. Bloom, 20 Johns. R. 689; 1 Story Eq. 497, 501; James v. M'Kennon, 6 Johns. R. 559; Lyon v. Talmage, 14 Johns. R. 516, side page. 6th. That the evidence rejected by the court was irrelevant to the issue.

NAPTON, J.

McCullough filed his amended bill on the chancery side of the Cooper Circuit Court, at the November term, 1838. The substance of the original bill and answer, together with the deposition, by the Circuit Court, of the issue first made in that court, may be found in the opinion of this court, contained in 5 Mo. R. 141.^(a) By the amended bill, it was represented that James Huston contracted with the defendants, Moore and Porter, to do the carpenters' work on a certain house, and that after making said contract, the complainant, McCullough, entered into partnership with said Huston in the execution of said work--that the said work was done and its value amounted to $1189: that after the completion of said work complainant and Huston came to a settlement with Moore and Porter, and it was agreed upon by all the parties aforesaid, that one half of the said sum should be paid to said Huston and the other half to complainant; and it was further agreed, that the sum of three hundred and forty dollars, for which said Moore and Porter held the complainant's bond, should be applied to the discharge of complainant's half, which sum of three hundred and forty dollars was in consideration of a lot sold by Moore and Porter to complainant; and Moore and Porter executed their note to complainant for the balance. The bill charges that the difference so found due was paid by Moore and Porter, and that the said Moore and Porter retained in their hands the sum of three hundred and forty dollars, in payment and satisfaction of the said obligation, mentioned in the original bill for the purchase money of the lot. Bill prays for a specific performance and a conveyance of the lot. Huston is made a party, and his answer admits the partnership, confirms the settlement, and the understanding that the complainant's bond was to be paid in the carpenters' work aforesaid. Huston avers that his part of the eleven hundred and eighty-nine dollars was settled and paid by Moore and Porter. Huston disclaims all interest in the event of the suit.

Moore & Porter's answer admits the partnership and the execution of the carpenters' work: admits the exhibition to them of a bill of items amounting to eleven hundred dollars and upwards, but declares that they complained that the items were too high, and avers that they refused to settle; admits that they paid to Huston one half of the bill presented, and that they agreed to pay to McCullough about two hundred and fifty dollars, making the aggregate of eight hundred and fifty-eight dollars, being as much as the respondents supposed the work to be worth. The answer further denies all indebtedness beyond what has been paid, and charges that Huston was fully paid for his work, without including the note of $340, which they still hold on McCullough for the consideration of the lot. They agree that if the work should be found to be worth the full sum charged, they are willing, if any balance is still due, that it shall be applied to the payment of this note, and aver their entire readiness to make a title whenever the purchase money is paid, &c. After the hearing of the testimony, the court decreed a conveyance. From the bill of exceptions, it appears that complainants moved to suppress the deposition of one Samual Williams, on the ground that the deponent read from a written deposition which he held in his hands at the time of his examination before the magistrate, and the questions and answers were an exact copy of the former suppressed deposition. On the hearing of the motion, the affidavit of complainant was read, from which it appeared that the witness, Williams, held in his hands what the affiant understood from witness, was a copy of a former deposition of same witness, which had been...