Parish v. Frampton
| Decision Date | 31 July 1862 |
| Citation | 32 Mo. 396 |
| Parties | ROBERT J. PARISH, Plaintiff in Error, v. E. M. FRAMPTON et al., Defendants in Error. |
| Court | Missouri Supreme Court |
Error to Cooper Circuit Court.
Stephens & Vest, for plaintiff in error.
I. The court below erred in not allowing the exception of plaintiff in error to the ruling of the commissioner, which excluded the evidence of Stephens as to facts occurring anterior to his assignment to Frampton. (See § 3, p. 1577, R. C. 1855.) Stephens was a competent witness, independently of the assignment. But he could certainly testify as to half the amount sued for. The reason of the statute, as provided in section 6, same page of the Statutes, and which is relied on by defendant, does not apply to one half of the debt. Parish could certainly recover that of Frampton, and no evidence given by Stephens could change his (Stephens') liability for the amount paid. (See Lee et al. v. Murray, 12 Mo. 280, particularly Judge Scott's opinion.)
II. The court erred in not allowing the other exceptions of plaintiff, and setting aside the commissioner's report. The facts show that Parish's money went to pay Frampton's debts, and that too at his request.
Stephens and Frampton were partners in business before and to March, 1857, under the name of Stephens & Frampton. The firm name was then changed to J. L. Stephens & Co., and they continued partners till June 1st, 1857, when their copartnership was dissolved, and Stephens and the plaintiff, Parish, formed a copartnership.
In March, 1857, when Stephens & Frampton changed the name of their firm, Frampton told Stephens to pay off the old debts, and they would afterwards settle. While Stephens and Parish were partners, Stephens paid debts of the firm of Stephens & Frampton with moneys of the firm of Stephens & Parish.
In September, 1858, Stephens assigned his interest in the several firms of which he had been a member to Parish, the plaintiff, who brought this suit against Stephens & Frampton for the recovery of the money so paid by Stephens out of the funds of Stephens & Parish, in satisfaction of the debts of Stephens & Frampton.
Stephens did not answer. Frampton answered, and made issues upon several allegations of the petition. The court referred the decision of the issues to a referee, who reported that there was no evidence that Frampton ever undertook to pay these sums to Stephens & Parish, or that he combined with Stephens to take money from Stephens...
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...testify, &c.: “any assignor of an account, judgment, or thing in action, concerning facts occurring anterior to the assignment”--Parish v. Frampton, 32 Mo. 396; Hamilton, v. Scull, 25 Mo. 165. The first instruction asked by the appellant, and refused, was properly refused: 1. Because the de......
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