Roussin v. St. Louis Perpetual Ins. Co.

• Decision Date: 31 October 1851
• Citation: 15 Mo. 244
• Parties: ETIENNE ROUSSIN v. THE ST. LOUIS PERPETUAL INSURANCE COMPANY.
• Court: Missouri Supreme Court

15 Mo. 244

ETIENNE ROUSSIN

v.THE ST. LOUIS PERPETUAL INSURANCE COMPANY.

Supreme Court of Missouri.

October Term, 1851.

ERROR TO WASHINGTON CRICUIT COURT.

SCOTT & YOUNG, for Plaintiff. The points relied on by plaintiff in error are, substantially, those only which are assigned for error. 1. The court improperly permitted the depositions of Seth A. Ranlett to be read in evidence, being mere hearsay and belief, and not properly accounting for the absence or loss of the note. That the court improperly admitted to be read as evidence, the two acts of 4th February, 1837, and 13th February, 1839, without also requiring the production and reading of the other act of the 4th of February, 1837, referred to, as containing the powers, rights and duties of this corporation. 3. The said corporation had no power to take an assignment of this note, either in payment of a debt, or for the purpose of discounting the same, or in any other manner whatever. See act establishing Farmers and Merchants Insurance Company, Laws of Mo. 1837, p. 189. A corporation has no powers not expressly granted. Blair v. St. Louis Perpetual Insurance Company, 10 Mo. R. 559.

LORD, for Defendant. The defendant in error will insist: I. Ranlett was a competent witness, and his deposition was properly read. No specific objections were made, at least none appear in the bill of exceptions. This court has uniformly held that no objection will be listened to here, that was not specifically made in the court below. Rev. Stat. 1845, p. 906, § 32; Field v. Hunter, 8 Mo. R. 128; Frost v. Pryor, 7 Mo. R. 314. II. The act of the General Assembly, incorporating the defendant in error, was properly read. No specific objections were made. III. The receipt produced by plaintiff in error, signed by George Burnett was very properly excluded. 1. Because George Burnett was a competent witness. 2. Because the defendant below shows that he had extensive dealings with Isaac Burnett, and, for aught that appears, he may have held other notes of plaintiff in error. George Burnett could have explained the whole matter. 3. The receipt is between other parties; it is given to Etienne Roussin & Co., and the note in question was made by Etienne Roussin. 4. If in a suit between Isaac Burnett and Etienne Roussin, such a receipt might be introduced, it by no means follows that it can be introduced as any evidence against the claim of the defendant in error. The receipt is merely the declaration or admission of Geo. Burnett, and should be evidence as against Isaac Burnett, only on the ground that George was the agent of Isaac, and acting within the scope of his authority; but where they attempt to prove as against the defendant in error, any payment upon the note in question, I apprehend they must produce other testimony than the mere declarations of Burnett's agent. IV. The court below properly refused to instruct, that all such parts of the defendant's petition as were not fully answered or not sufficiently answered by the respondents, should be taken as confessed, and considered an evidence for defendant. 1. There is nothing in the petition, showing that either Camden, Crow or Ranlett knew anything about the transactions between Roussin and Burnett, and there is no pretense that anything was paid on the note after it came into the hands of the defendant in error. 2. They were all competent witnesses. Gelston v. Hoyt, 1 Johns. Ch. Cases, 543. 3. The petition and interrogatories were sufficiently answered. All that is required by the statute, is, to answer the interrogatories. Rev. Stat. art. 4, §§ 12, 13, 14, p. 818; and §§ 18, 19, p. 819. 4. Whether the answer was sufficient or not, it was treated as sufficient by plaintiff in error. He did not except to it, but read it to the jury. It is a well settled rule, in chancery practice, that if the answer does not fully answer the bill, or leaves some part of the bill unanswered, but is not excepted to, the complainant is put to the proof of his bill. See opinion of Justice SCOTT, in Gamble et al. v. Sectt, 9 Mo. R. 625. An imperfect answer does not admit the bill to be true. 5. A bill in chancery cannot be taken as confessed, where an answer has been put in, except in the mode pointed out by the statute. See § 20, Rev. Code, p. 841, Practice in Chancery. If the answer to the petition was not sufficient, plaintiff in error should have excepted. The bill of exceptions discloses the fact that an instruction was asked to the effect, &c. The instruction is not set out in the bill of exceptions, and none probably ever written, and no error could have been committed by the court below, in refusing to give an instruction not written out. 6. In any view of the case that can be taken, this court will perceive that plaintiff in error was too late to move to take the bill pro confesso after having read the bill as put, and the answer, to the court sitting as a jury.

GAMBLE, J.

The Perpetual Insurance Company commenced an action of assumpsit against Roussin in the Circuit Court of Washington county, charging him as maker of a promissory note, payable to one Isaac Burnett and indorsed to the plaintiff. Roussin, after pleading the general issue, filed a petition for discovery, and the court ordered certain officers of the company to answer the petition. Answers were filed and the parties proceeded to trial. The plaintiff read in evidence a deposition of Seth A. Ranlett. It is stated in the bill of exceptions, that Roussin objected to the deposition and that the objection was overruled, but the grounds of the objection are not stated. The plaintiff read in evidence two acts of the General Assembly, the first, incorporating the insurance company, and the second, changing its original corporate name. To these acts the defendant objected, but the ground of the objection does not appear. The defendant then read in evidence his petition for discovery and the answers made to the interrogatories. After proving that George Burnett, Jr., was in the employment of Isaac Burnett, as clerk, on the 8th day of April, 1842, he offered to read in evidence a receipt, signed by said George Burnett,...