Moore v. McCullough

CourtUnited States State Supreme Court of Missouri
Writing for the CourtNAPTON
Citation8 Mo. 401
Decision Date31 January 1844
PartiesMOORE & PORTER v. MCCULLOUGH.

8 Mo. 401

MOORE & PORTER
v.
MCCULLOUGH.

Supreme Court of Missouri.

January Term, 1844.


The judgment of the Circuit Court in this case was affirmed by a division of the court. See same case in 5 Mo. R. 141, and 6 ibid. 444

APPEAL FROM COOPER CIRCUIT COURT.

HAYDEN and DAVIS, for Appellants. 1. In order to entitle the complainant to a decree against the defendants for a specific performance of the contract for the lot in question, it devolves upon him to show that he has fully paid for the lot, as stated in his original bill of complaint; or that he has fully satisfied the plaintiff therefor, under the alleged agreement and settlement of accounts, as set forth in his said amended bill of complaint. By the evidence in the cause, he has not sustained the allegations in either bill. 2. A decree for a specific performance of a contract is a matter in the sound discretion of the court; and unless the court be satisfied, from all the circumstances, that the claim of complainant to the decree prayed for be fair, just, and free from all fraud and circumvention on the part of complainant, the court cannot, upon principles of equity, interpose in his behalf, but will leave him to his remedy at law. 6 Johns. Ch. R. 223, Seymour v. Delancy, and authorities there cited; 1 Maddock's Ch. R. 405; 2 Peters' Cond. R. 116; 1 Bacon, 110, 111; 5 Peters, 276, Cathcart and others v. Robinson; 2 Johns. Ch. R. 23, Osgood v. Franklin; 2 Cowen, 139; 3 Cowen, 504. 3. If the facts of this case, as shown by the testimony, satisfy the mind of the Chancellor that the complainant, by fraudulent representations to the defendants, Moore & Porter, procured from them an agreement to settle, and an actual settlement of the account for carpenter's work done upon the house mentioned in the amended bill, and by such fraud and false representations obtained from them, Moore & Porter, an allowance for a larger sum of money than the work was actually worth, then the complainant has no right to set off the amount so allowed against the price which he agreed to pay for the lot. 4. The court erred in refusing to permit the defendants to show, by the deposition of Luther Carter, that the work done upon the house of defendants was only, by admeasurement, worth $865 56, as also in rejecting the testimony of James Carter and Jesse Homan, as offered by defendants. 5. The court erred in permitting James Huston, one of the defendants and an interested witness, to testify in the cause.

ADAMS and LEONARD, for Appellee. 1. Huston was properly received as a witness. See 1 Phillips' Ev. 53, in notes; 1 Johns. R. 556, 576, 577, Beebe

[8 Mo. 402]

and others v. Bank of New York; Trustees of Huntington v. Nicoll, 3 Johns. R. 566; 2 Johns. Ch. R. 550, 626; 1 Pere Williams, 596, in point. 2. There was no foundation laid in defendants' answer to open and surcharge the settlement alleged in the amended bill. 3. 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 439, in notes; 1 Maddock's Treat. 102-3; Comyn on Contracts, 473, in notes; 2 Marshall, 338; 2 Starkie's Ev. 18, 19; Stoughton v. Lynch, 2 Johns. Ch. R. 689; 1 Story's Eq. 497, 601; James v. McKennon, 6 Johns. R. 559; Lyons v. Talmadge, 14 Johns. R. 516, side page; 3 Wend. 653; 2 Tucker's Com. 417.4. The evidence rejected by the court was irrelevant to the issue.


NAPTON, J.

This was a bill in chancery to compel the conveyance of a lot of ground in Boonville. The bill, answers and replications, are not materially different from what they were in 1840 (see 6 Mo. R. 445), and I shall therefore refer to that opinion for the statement of the issues involved. The only issue, as I then thought, presented by the bill and answers was, whether the settlement between the defendants and Huston and McCullough was final, and embraced the whole amount of the bill of items furnished, or was only partial and conditional, to be subject to a subsequent re-adjustment of the account, and regulated by a new admeasurement of the work. On the hearing of the case, the Circuit Court confined the testimony to this issue, and refused to hear evidence conducing to prove the exorbitance of sundry items in the bill of charges upon which the alleged settlement was founded, and the action of the Circuit Court in this particular was approved in the opinion given in 1840.

I am still unable to perceive any reason for changing that opinion. The complainant alleges, in his bill, that there was a final settlement between the parties, and that his note to the defendants, for the price of the lot, was embraced in this settlement. The defendants insist that there was no such settlement: they admit that they had a partial settlement, to the amount of $858; but aver, that the note for $340 (given for the lot) was retained to secure them against errors in the settlement of accounts, and that this settlement was made with an understanding between all the parties that the work was to be re-measured and priced by disinterested carpenters, and the bill to be regulated accordingly. If the complainant fails to establish a settlement, such as charged in the bill, he is not entitled to a decree. In this event an inquiry into the correctness of the charges made in the bill of items becomes unnecessary. Proof that there is no settlement, no account stated, examined, and accepted, is sufficient to defeat the bill. On the other hand, if the settlement was established or admitted, to authorize the defendants to open that settlement, and “surcharge and falsify” the account, the defendants must distinctly charge the

[8 Mo. 403]

mistakes or errors of which they complain 4 Vesey, 411 Stoughton v. Lynch. 2 Johns Ch R 218 The defendants, however, do not admit any settlement, no basis is laid for any allegations relative to the falsity or exorbitance of the charges, no distinct and substantive allegations of this character are contained in the answer, and consequently any proof in relation to such matters would be irrelevant to the issue.

The only question remaining to be determined is, whether upon the bill, answer, and evidence in the cause, the Circuit Court was justified in the conclusions to which it arrived, that a final settlement was made between these parties. The details in the testimony are as follows

Huston, a...

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2 practice notes
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...275 Mo. 128, 204 S.W. 1100; Hector v. Mann, 225 Mo. 228; State ex rel. v. Hawkins, 169 Mo. 615, 70 S.W. 119; Moore v. McCullough, 8 Mo. 401; Kronenberger v. Binz, 56 Mo. 122; Quinlan v. Keiser, 66 Mo. 605; Marmon v. Waller, 53 Mo. App. 610; McKeen v. Bank, 74 Mo. App. 281; State ex rel. Sco......
  • State ex rel. Scotland County v. Ewing
    • United States
    • United States State Supreme Court of Missouri
    • May 8, 1893
    ...thing — recovered back. The rule is that a settlement can only be opened for fraud or for errors or mistakes of fact. More v. McCullough, 8 Mo. 401; Kronenberger v. Binz, 56 Mo. 122; Quinlan v. Keiser, 66 Mo. 605. County courts are by statute2 given full power and authority to make the fina......
2 cases
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...275 Mo. 128, 204 S.W. 1100; Hector v. Mann, 225 Mo. 228; State ex rel. v. Hawkins, 169 Mo. 615, 70 S.W. 119; Moore v. McCullough, 8 Mo. 401; Kronenberger v. Binz, 56 Mo. 122; Quinlan v. Keiser, 66 Mo. 605; Marmon v. Waller, 53 Mo. App. 610; McKeen v. Bank, 74 Mo. App. 281; State ex rel. Sco......
  • State ex rel. Scotland County v. Ewing
    • United States
    • United States State Supreme Court of Missouri
    • May 8, 1893
    ...thing — recovered back. The rule is that a settlement can only be opened for fraud or for errors or mistakes of fact. More v. McCullough, 8 Mo. 401; Kronenberger v. Binz, 56 Mo. 122; Quinlan v. Keiser, 66 Mo. 605. County courts are by statute2 given full power and authority to make the fina......

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