Skinner v. Henderson
| Decision Date | 31 July 1846 |
| Citation | 10 Mo. 205 |
| Court | Missouri Supreme Court |
| Parties | SKINNER v. HENDERSON. |
ERROR TO PLATTE CIRCUIT COURT.
STRINGFELLOW, for Plaintiff. It is insisted that the court erred in excluding the evidence offered by plaintiff. The action being for money had and received, not only was the copy admissible to show the contract, but the evidence of Mrs. Bywaters was clearly admissible to show the rescission of the contract. The receipts were unquestionably evidence, as was the evidence offered to show the cancellation of the contract, and that defendant had not complied with his part of the contract. Assumpsit is the proper action to bring for money had and received under a contract which has been rescinded. 2. The exceptions to the exclusion of the evidence were properly taken. It is shown by the record that they were taken on the trial.
ALMOND, for Defendant.
1. The points and grounds set forth by the plaintiff in his motion for a new trial, are not saved and preserved in the bill of exceptions, for reasons: I. The bill of exceptions does not show that the plaintiff accepted at the time, to the opinion of the court in excluding the copy of the bond therein set forth. II. Said bill of exceptions does not show that the plaintiff excepted at the time to the opinion of the court in excluding the receipts and other parol testimony therein set forth as offered by plaintiff, and excluded. III. And the sweeping expressions used in the bill of exceptions toward the close of it twice, “all of which opinions of the court were excepted to on the trial,” “to all of which opinions of the court in excluding from the jury the said receipts, and the said copy of the said bond, and the said parol evidence so offered as aforesaid, the plaintiff by his counsel excepts,” are not sufficient to save those points respectively. For the exceptions may not have been taken at the respective times of the exclusion. Waldo v. Russell, 5 Mo. R. 387. IV. The bill of exceptions does not show and set forth as it should, the specific grounds and reasons on which the evidence of the plaintiff was excluded, and the Supreme Court cannot therefore say whether the Circuit Court decided right or wroug. Fields v. Hunter, 8 Mo. R. 128. V. Where the bill of exceptions is doubtful and ambiguous, the court will not intend anything for the benefit of the party whose duty it was to make the matter plain. Collins v. Bowmer, 2 Mo. R. 195.
2. The action in this case is assumpsit on the common counts. And the plaintiff seeks to recover exclusively on the bond once in existence, but before suit brought, burnt and destroyed by defendant, with the consent of the plaintiff, and as he imagined, as a favor to him and for his benefit, by proving or attempting to prove, as I suppose, that defendant had not complied with his part of the bond after he had received the payments therein stipulated.
The defendant contends that the copy of the bond was properly excluded, for the following reasons: I. The copy professes to have been signed, sealed and delivered in the presence of John C. Bywaters and Eli Shepherd, as subscribing witnesses. We have no right to infer from similarity of names, that the witness, John C. Bywaters, is the same person who subscribed the deed as a witness, and if we could so infer, he nowhere proves the execution of the original or even attempts it. 1 Starkie on Evidence, (top paging) 320, 323 and 340. II. If the statement of Bywaters, that plaintiff and defendant placed the original in his possession for safe-keeping, be construed to prove an admission by defendant of the due execution thereof (which under the rules of law cannot be so construed), still the subscribing witnesses ought to have been called, and proved its execution;--and as there was suspicion strong about the original, both witnesses ought to have been called and examined (1 Starkie on Evidence, 320), or their absence accounted for. III. The plaintiff voluntarily, and without mistake, or...
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Stephan v. Metzger
...a copy or other secondary testimony of its contents. The act itself and its circumstances are to be fully considered. Skinner v. Henderson, 10 Mo. 205; Drosten v. Mueller, 103 Mo. 624, 15 S. W. 967. Where, as in the case at bar, the destruction of the paper has been brought about innocently......
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Knapp v. Knapp
...as in disaffirmance, and this doctrine is consonant with the spirit and policy of the law. Adams Ex. Co. v. Reno, 48 Mo. 264; Skinner v. Henderson, 10 Mo. 205; Spring Co. v. Knowlton, 103 U. S. 49-58, 26 L. Ed. 347; Lawson on Contracts, (2d Ed.) p. 69; 2 Parsons on Contracts (9th Ed.) 746; ......
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Stephan v. Metzger
...a copy or other secondary testimony of its contents. The act itself and its circumstances are to be fully considered. Skinner v. Henderson, 10 Mo. 205; Drosten v. Mueller, 103 Mo. 624, 15 S.W. 967. as in the case at bar, the destruction of the paper has been brought about innocently, and be......
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