Robbins v. Alton Marine & Fire Ins. Co.

• Decision Date: 31 March 1849
• Court: Missouri Supreme Court
• Parties: ROBBINS v. THE ALTON MARINE & FIRE INSURANCE COMPANY.

12 Mo. 380

ROBBINS

v.THE ALTON MARINE & FIRE INSURANCE COMPANY.

Supreme Court of Missouri.

March Term, 1849.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

WHITTLESEY, for Appellant. The facts of this case present three questions for the decision of the court, upon the first two of which turns the error of the decision of the court below in refusing the instruction asked by defendant; and upon the third, the error in refusing to grant a new trial.

1st. It appears by the facts of the case, that by the agreement between Dickenson and the company, that D. was to have two-thirds of the pipe for his compensation for wrecking them. He was, therefore, tenant in common with the company, and having sold the pipe to Robbins, as appears by the testimony, Robbins became entitled at least to the two-thirds of Dickenson, and became tenant in common with the company, owning two-thirds himself and the company one-third. Upon this state of facts, we take the position, that one tenant in common cannot sue his co-tenant at law in assumpsit. The only case in which one tenant can sue the other, is when one has destroyed the chattel, and then the other may have an action on the case for destruction or conversion. With this exception, the only remedy one tenant in common has against the other, is an action of account or his suit in chancery. The rule that joint owners of chattels cannot sue each other at law is well established; for example, the owners of a ship or vessel, partners in trade, and the only exception is that given above of an action on the case where the property has been destroyed. This rule is well illustrated by the rule, that all tenants in common or joint owners, must sue jointly. In proof of the above proposition, see 1 Chit. Pl. 91; Thompson & Price v. Elliott, 5 Mo. R. 118, 525. Even in trover, one tenant in common cannot sue another, unless the chattel is destroyed, and a sale, as it conveys only the vendor's own right, is no destruction. 1 Taunt. 241. In Heath v. Hubbard, 4 East, 121, the court decided that the sale of a chattel was not equivalent to its destruction, and that trover would not lie; and the same point was decided in Danforth v. Webb, 1 Day, 301; see also, 1 Tenn. R. 658; 8 Barn. & Cres. 257; 9 Wend. 338; Wheeler v. Horne, Wells, 209. If one tenant in common make repairs, he cannot sue in assumpsit without demand and refusal to repair; 6 Conn. R. 475. One tenant in common cannot sue the other for portion of rent; 8 Conn. R. 304. One partner cannot sue the other at law until accounts are settled; 2 Conn. R. 425; 1 Wend. 532; 14 Johns. 318.

2nd. The plaintiff and Dickenson having been tenants in common, and Dickenson having sold to Robbins in payment of a pre-existing debt, and the company having sued in assumpsit, such suit is a ratification of the sale by Dickenson, and all the consequences of such sale are therefore ratified. Besides it appears by the evidence that Dickenson was authorized by Tracy, the agent of the company, to make a sale; it was therefore, on that supposition a valid sale. At any rate they cannot be allowed to blow hot and cold, to say that the defendant has illegally taken their property, and at the same time sue him in assumpsit for property he has bought of their co-tenant. By suing in this form of action, they have declared the sale by their co-tenant a valid sale, and must therefore look to his estate for any conversion of which he may have been guilty. See on this point, 4 Tenn. R. 211; 2 Strange, 859; 1 Ark. 128; 1 Term. R. 378; 7 Barn. & Cres. 310; 3 Barn. & Adol. 580; 7 East, 164; 9 Barn. & Cres. 59; 1 Watts & Serg. 108; 5 Metc. 49.

3rd. The court below erred in refusing a new trial to the defendant. The affidavit of defendant showed that he was entirely surprised by the evidence offered and the case made by the plaintiff. It was a case which he had not expected, of which he was not informed either by the declaration or by the bill of particulars, and the affidavit shows that if a new trial were granted, he could disprove the greater part if not the whole of the plaintiff's case. He came prepared to meet one case, and found on trial one of an entirely different character. He was surprised: that surprise is a good ground for a new trial. See Hite v. Lenhart, 7 Mo. R. 22. For the case he had expected to meet he had made every preparation, and found on trial that all his preparations were useless; that he was not prepared for the proof offered. 1 W. Blacks. 298; 2 Burr. 1216; 3 Taunt. 484; 3 Barn. & Adol. 328; 5 Barn. & Adol. 9; 1 Burr, 352. The court should also have granted a new trial because the damages were excessive. The plaintiffs, at best, were only entitled to one-third of the amount, for the defandant sold the pipe, being himself the owner of the other two-thirds by purchase from Dickenson: and there was no proof at all to show that he knew anything of the mortgage of Dickenson to the company at the time he purchased. He knew Dickenson only as the owner, as it appears from the testimony of Krum, the agent and solicitor of the company; that Dickenson brought suit for the pipe in his own name as if he was the sole owner and so recognized by the company. The damages were also excessive, as exceeding the amount claimed in the bill of particulars, in which no interest is claimed. For these reasons the appellant claims that the judgment of the court below should be reversed as erroneous.

LESLIE & LORD, for Appellee.

1st. The verdict was right; and is supported by the law and the evidence. The case seems a naked one. 2nd. The only question raised by the instruction asked in the court below, was that the Insurance Company could not recover unless the jury found that Robbins received the money from the city on the sale of the pipe. The jury found, as a matter of fact, that Robbins did receive the money, and the finding of a jury upon a matter of fact will not be disturbed by this court. 6 Mo. R. 63; 8 Mo. R. 437; 9 Mo. R. 838. 3rd. The affidavit upon which the plaintiff in error relies, is wholly insufficient in any point of view, either of surprise or of newly discovered evidence. First. To entitle a party to relief on the ground of surprise, there must be merits, and the surprise must be such as care and prudence could not provide against. 2 Chitty, 194; 9 Johns. 77; 1 Wilson, 98; Graham on New Trials, 174. Second. It is a new settled rule that a new trial will be granted because the party came to trial unprepared. 1 Wilson, 98; 9 Johns. 77; 2 Caine, 129; 8 Cowen, 283; Graham on New Trial, 176. Third, The court will not regard the statement of the plaintiff in error, that he was surprised by the testimony of Judge Krum and Ed. Tracy, because no evidence was called to contradict or impeach them. Bell v. Thompson, 2 Chitty, 194. Because, if he shows a surprise, he does not show how he was injured by it. 1 Aiken's Vt. R. 306. Because he does not even pretend that if a new trial was granted to him, he could either impeach or contradict their testimony in any particular. Nor will a new trial even be granted to enable a party to impeach a witness on the ground of his interest subsequently discovered: 1 Tenn. R. 717; Graham on New Trials, 228. 4th. A new trial will never be granted to enable a party to produce evidence, which he might have produced at the trial by using ordinary diligence. 5 Wend. 127; 1 Wilson, 98. The plaintiff in error was fully apprised of the nature of the demand against a bill of particulars was furnished, and ...