Overton v. Stevens

• Decision Date: 31 July 1844
• Citation: 8 Mo. 622
• Parties: OVERTON ET AL. v. STEVENS ET AL.
• Court: Missouri Supreme Court

8 Mo. 622

OVERTON ET AL.

v.STEVENS ET AL.

Supreme Court of Missouri.

July Term, 1844.

APPEAL FROM MARION CIRCUIT COURT.

HICKMAN, for Appellants. 1st. Upon the motion to dissolve the injunction, for the want of equity on the face of the bill, the Circuit Court ought not to have dismissed the bill, and given a decree against complainants for the costs. See Hardin, 12; 1 Bibb, 518; 1 Monroe, 190; 3 J. J. Marshall, 302; 6 Cranch, 51. 2nd. The appellants contend, that the Circuit Court of Marion, sitting as a court of chancery, and undoubted jurisdiction in this cause, both defendants in the bill being non-residents of this State. See 2 Littell, 72; ibid. 85; Littell's Select Cases, 469; ibid. 407; ibid. 244; 1 Littell, 305; 4 Littell, 157; 3 Monroe, 83; Littell's Select Cases, 26.3rd. If the appellee, Stevens, was not originally bound by the acts of Van Lear, his agent, who made to appellants the bill of sale, still, his subsequent recognition of the acts of Van Lear made him (Stevens) responsible to appellants for the pedigrees which Van Lear had bound himself to furnish. See 3 Marshall, 484; 5 Littell, 178; 6 Wheaton, 240; Paley on Agency, 203, 302, 305, 197. 4th. Van Lear was made a defendant; an order of publication was made against him; he never answered the bill, and the Circuit Court ought not to have entered a decree for costs in his favor against the complainants. 2 Marshall, 244; 3 ibid. 535.

CROCKETT and BRIGGS, for Appellees. 1st. A court of chancery had no jurisdiction of the cause; for the reason, that the complainants had a plain remedy at law. In the suit at law upon the note, the defendants could have proved damages in mitigation of the amount to be recovered. 3 Wendell, 236; 4 ibid. 483; 8 ibid. 2nd. The bill of sale in this case imposes no obligation to furnish pedigrees, upon Stevens. The bill of sale is not signed by Stevens, either in person, or by his agent. It is signed simply, “““Isaac Van Lear, and by its express words, the promise to furnish pedigrees is made by Van Lear, and not by Stevens. Coke's R. 75; Comyn's Digest, Attorney, ch. 14; Paley on Agency, 180; 2 Kent's Com. 620, 631, 3rd. ed.; Story on Agency, § 147; 8 Marshall, 545; 2 Ld. Raymond, 1418; 1 Strange, 705; 2 East, 142; Bac. Abr. Cases, 1, § 10; 5 East, 148; 1 Wils. R. 28, 58; 6 Johns. R. 94; 9 Johns. R. 334; 10 Wendell, 87; 4 Mass. R. 595: Story on Agency, § 153; Livermore on Agency, 253-4; 2 Strange, 955; 5 Mass. R. 299; 1 Hill, 160; 20 Wend. R. 257; 8 Mass. R. 108; 12 Mass. R. 174; 7 Monroe's R. 356; 4 J. J. Marshall, 127; 2 Wheaton, 56-7. 3rd. The complainants “must do equity before they can require equity;” in other words, they cannot tie up the judgment on the first note which matures, without showing their readiness to pay the last note, which is admitted to be due, and which remains unpaid. In New York, it has been decided, that relief in equity should not be granted against a usurious contract, unless the plaintiff brings into court the money actually lent, with interest. 1 Johns. Ch. R. 367, 439. The same principle applies with more force here. Before the complainants should be allowed to tie up one-half the purchase-money, they ought to have tendered in court the remainder, which they admit to be due. 4th. Inasmuch as the complainants allege that the damage which they suffered amounted only to one-half the purchase-money, they had no right to enjoin the collection of the first note, when it is conceded that the last note would cover the loss. 5th. Upon the proof, complainants are not entitled to relief, as there is no evidence that they have been damaged, as alleged in the bill; on the contrary, the evidence is satisfactory, that they have sold the horses for as much as the original cost, besides having realized large profits by running them.

NAPTON, J.

William G. Overton, Samuel C. Sloan and Henry Shacklett, filed their bill in chancery in the Marion Circuit Court, at its November term, 1840, to enjoin the collection of a judgment at law, obtained against them by John C. Stevens. The bill charges that in 1838, John C. Stevens, sent by his agent, Isaac Van Lear, to the city of St. Louis, a lot of blooded horses, four of which the complainants purchased, upon a written contract with Van Lear. That contract was as follows: “Know all men by these, that I, Isaac Van Lear, agent for John C. Stevens, of the State of New Yerk, in consideration of five thousand six hundred dollars to be paid me, by S. C. Sloan, Henry Shacklett and William G. Overton, all of the State of Missouri, in two equal installments, as per their two notes, bearing even date with this, do hereby give, grant, bargain and sell unto the said Sloan, Shacklett and Overton, the four following horses, to-wit; black horse, African, five years old, by imported Valentine, dam Ethelinda, by Marshall Bertrand; Bonny Black, mare, five years old, by imported Valentine, dam Helen Mar, by Thornton's Rattler; Ethiopia a black mare, four years old, by Darhull, dam by imported Expedition; Mortimer, a chestnut horse, five years old, by Monmouth Eclipse, dam by Oscar: To have and to hold the said horses unto the said Sloan, Shacklett and Overton, free of any claim or incumbrance whatever; and I, the said Van Lear, for John C. Stevens, do guaranty the above-named horses to be thorough bred, and bind myself, as agent, to deliver to the said Sloan, Shacklett and Overton, full, perfect and properly authenticated pedigrees of said horses, within a reasonable time. Given under my hand this 18th September, 1838.

(Signed)

ISAAC VAN LEAR.”

Complainants allege, that they executed two notes, each for the sum of twenty-eight hundred dollars, payable on the 1st of January, 1840, and the 1st of January, 1841, and delivered the same to Van Lear, as agent for said John C. Stevens; that Stevens has brought suit, and recovered judgment on the first note. The complainants aver, that full and perfect pedigrees of the horses sold to them by Stevens, especially of Mortimer and African, are essential to a proper appreciation of their value by the public, and that said pedigrees had not been furnished, pursuant to contract with said Stevens, although said Stevens had fully recognized the agency of Van Lear in transacting the sale. The bill proceeds to specify sundry losses, which the complainants suppose themselves to have sustained, by not having properly authenticated pedigrees, and charges those losses to be equal to the amount of the first note, for two thousand eight hundred dollars. The bill further charges, that Stevens is a non-resident, so that no process can be served on him, and prays a perpetual injunction against the collection of the judgment at law for twenty-eight hundred dollars. Van Lear is made a party defendant.

The answer of Stevens admits the sale of the horses, and the authority of Van Lear to sell, but denies any authority in Van Lear to bind him to furnish pedigrees; avers, that the pedigrees of the horses were fully known to the complainants when they purchased; that they were published in the Turf Register, a paper to which they were subscribers; and denies, that complainants sustained any loss or inconvenience for want of written pedigree; avers...