Scoggin v. Wilson

• Decision Date: 31 January 1850
• Citation: 13 Mo. 80
• Parties: SCOGGIN v. WILSON ET AL.
• Court: Missouri Supreme Court

13 Mo. 80

SCOGGIN

v.WILSON ET AL.

Supreme Court of Missouri.

January Term, 1850.

APPEAL FROM ATCHISON CIRCUIT COURT.

Elizabeth W. Scoggin sued Henry B. Roberts, Robert Wilson, Hiram Rich, William Cunningham and James P. Burnes in trespass, in the Atchison Circuit Court, for taking and converting to their use one trunk and its contents, consisting of about $300. To the declaration the defendants plead the general issue. The plaintiff then filed a petition for discovery. Rich and Wilson answered, and the others failing to answer according to the order of the court, the facts stated in the petition were ordered to be taken as confessed. The case was then dismissed as to Cunningham, and tried by a jury as to the other defendants. On the trial the plaintiff read to the jury the answers of Rich and Wilson, the petition for discovery and the deposition of Warmcastle, and also examined one Hardin as a witness. The evidence shows that Rich and Wilson had executions against said Hardin, and that James P. Burnes, as constable, assisted by Roberts and Cunningham, levied said executions upon plaintiff's trunk and money, in amount about $250 or $300, and that Hardin paid no money on said execution, and Wilson received on said executions $220 of said money.

The court then gave to the jury the following instructions on the part of the plaintiff: 1. That if they believe from the evidence that the defendants took a trunk and money of the plaintiff and converted the same to their own use, or the use of any or either of them, they will find for the plaintiff.

The plaintiff also asked the court to give the following instructions, which were refused by the court. 2. That if only a part of the defendants were personally present at the time the property was taken, and those who were not present afterwards consented to the trespass, they so consenting, are liable in this case. 3. That if they believe from the evidence, that money and property was levied upon by part of said defendants, to satisfy an execution in favor of Rich and Wilson, and that defendant, Wilson, afterwards received a portion or all of the money made by such levy, then they are liable in this action.

The court gave to the jury the following instruction on the part of the defendants, to-wit: 1. That the answers of Rich and Wilson, not being contradicted by other evidence, are to be taken as true, and if so taken, they will find for said defendants, Hiram Rich and Robert Wilson. The plaintiff then took a non-suit, and filed a motion to set it aside and for a new trial, which said motions being overruled by the court, the plaintiff excepted and has brought the case here by appeal.

EDWARDS & JONES, for Appellant. 1. In trespass all are principals, and those who direct or assent to a trespass for their benefit, are equally liable with those who actually commit it. 7 Mo. R. 166. Burnes, as constable, at the instance of Roberts, as agent for Wilson and Rich levied an execution in favor of said Wilson and Rich on the property of plaintiff, and said Burnes and Roberts afterwards paid Wilson $220 of the money of plaintiff. The acts of Burnes and Roberts, as the agents of Wilson and Rich, were the acts of Rich and Wilson. Qui favit per alium, favit per...