Pearce v. Roberts

• Decision Date: 31 March 1856
• Citation: 22 Mo. 582
• Parties: PEARCE, Appellant, v. ROBERTS et al., GARNISHEES OF BURNS, Respondents.
• Court: Missouri Supreme Court

22 Mo. 582

PEARCE, Appellant,

v.ROBERTS et al., GARNISHEES OF BURNS, Respondents.

Supreme Court of Missouri.

March Term, 1856.

1. Pearce v. Burns, 22 Mo. 577, affirmed.

Appeal from St. Louis Court of Common Pleas.

This was a suit commenced by attachment against James and Henry Burns (the latter of whom died pending the suit), of the firm of Burns & Brother, on two promissory notes. Roberts and Kerr were summoned (the former, June 19th, 1854, the latter, July 14, 1854,) as garnishees, and interrogatories filed. The garnishees denied in their answer all indebtedness to Burns & Brother; also the possession of any property belonging to Burns & Brother. Plaintiff replied to this answer, and denied so much of the answer of the garnishees as alleged “that at the time they were summoned herein as such, they were not in possession of any goods, money, or effects of the defendants as charged,” &c. Upon the trial of the issue thus raised, the court found the facts to be as follows; “That the property mentioned in the following writing came to the hands of the garnishees as hereinafter stated.

Warsaw, Benton county, Mo., Jan'y 24, 1854.

Received of Messrs. Houseman, Lowry & Co., of St. Louis, Mo., $1074 09, as an advance in cash on lard in barrels and kegs, hams, shoulders and sides in bulk, the produce of three hundred and sixty hogs, now stored in L. H. Hicks' warehouse in Warsaw, the same to be shipped to Messrs. Houseman, Lowry & Co., St. Louis, on opening of navigation, for sale for account of Messrs. Burns & Brother, and to be covered by Messrs. H., L. & Co. by fire and marine insurance, and now subject to their order, control and possession; proceeds, after the above advance and charges, to be subject to order of Messrs. Burns & Brother. [Signed] Burns & Brother. [Witness.] Y. C. Blakey.”

“I hereby acknowlege that, in my presence, Mr. J. D. Houseman took possession of property, of meat consisting of hams, sides and shoulders, lard in barrels and cans, for advances made to Messrs. Burns & Brother, for use of Messrs. Houseman, Lowry & Co., consisting of the product of 360 hogs, now in warehouse, which Mr. H. L. Hicks is agent and has control. Warsaw, January 24th, 1854. [[[[[[Signed] Y. C. Blakey.”

After the execution of said paper, Mr. Houseman, for Houseman, Lowry & Co., took possession of said articles and put them in a warehouse, rented for that purpose, at Warsaw, Mo., and left the key with the agent of Houseman & Lowry, directing that the goods should be sent forward to St. Louis according to the orders to be by them thereafter given. At the time, it was supposed by Burns & Brother and by Houseman that the articles would sell for more than enough to satisfy the demands and charges and commissions of Houseman & Lowry. It was therefore agreed by Houseman & Lowry that they would accept drafts for the balance which might be in Houseman & Lowry's hands, after the goods were sold and the claims of the latter were satisfied out of the proceeds of the sale. Houseman & Lowry sent by the steamboat Kentucky No. 2 an order on their agent to forward the articles to them by the said steamer. Said articles were brought on said steamer, consigned by Martin & Cook to the garnishees, with directions to pay Houseman & Lowry their demands out of the proceeds of the sale, and to pass the balance to the credit of Martin & Cook. Martin is a brother-in-law of James and Henry Burns, The evidence does not show how Martin & Cook got possession of the articles. Houseman & Lowry never authorized Martin & Cook to take possession of or meddle with said articles in any way, nor were they aware, until the articles reached St. Louis, that Martin & Cook, or any one but Houseman &...