Stachely v. Peirce
| Decision Date | 31 October 1866 |
| Citation | 28 Tex. 328 |
| Parties | JOHN A. STACHELY v. W. A. PEIRCE. |
| Court | Texas Supreme Court |
It was not error to refuse a continuance on account of the absence of a witness, when the appellant failed to state in his affidavit that he expected to have the testimony of the witness at the next term of the court, or at any other future time. Pas. Dig. art. 1509, note 595; 11 Tex. 86.
When an affidavit for a continuance was based upon the inability of the applicant to procure a copy of a sequestration judgment of the Confederate States district court, for the reason that there was no authority empowered to furnish copies of such judgments, and the affidavit did not state that the applicant expected to procure the copy at any future time, the contin uance was properly refused.
The plaintiff sued for a quantity of wool, or its value, and offered in evidence a receipt of the defendant jointly to the plaintiff and another person for a larger quantity of wool. The defendant objected to the admission of the receipt, because it did not show that it was given for the wool sued for, but for a large quantity delivered jointly by the plaintiff and another person. The plaintiff offered no evidence to explain the receipt, by showing that, in fact, the wool mentioned in it was received by the defendant from the plaintiff alone, nor that the defendant was accountable for the wool to the plaintiff alone, and not to him jointly with the other bailor: Held, that without explanatory evidence showing a sole right of recovery in the plaintiff, it was error to overrule the objection and admit the receipt. See the history of the case.
Though receipts are not conclusive, but may be contradicted or explained by parol evidence, yet they are, prima facie, to be taken as correct, and the facts shown by them are to be taken as true, until the contrary is shown by other evidence. Consequently, a joint receipt of the character above indicated did not tend to sustain the sole cause of action alleged in the plaintiff's petition.
In an action to recover property in a case of a joint bailment, all the joint owners must join as plaintiffs. No less number can maintain the action.
Every cause of action belongs exclusively to him or them whose right has been violated or withheld.
Joint creditors, whether by record, specialty, or simple contract, must all join in an action to recover the debt or the estate which they respectively hold together.
Where the plaintiff declared in his own right, and produced a receipt which showed a joint cause of action with another as to a part of the demand, although that other swore that he had no interest in the thing bailed, and never had, and that the balance of the money due was the absolute property of the plaintiff, the court, without passing upon the objection to the evidence of the witness, or the effect of the statement, reversed the judgment against a special verdict, although there were no instructions in the record.
APPEAL from Comal. The case was tried before Hon. THOMAS H. STRIBLING, one of the district judges.
W. A. Peirce sued John A. Stachely, and charged that on the 30th day of May, 1861, the plaintiff caused to be delivered to the defendant six hundred and forty pounds of wool on storage, to be disposed of as thereafter the plaintiff should direct; that the plaintiff was the legal and equitable owner of the wool; that on the 1st of October, 1861, he demanded a return of the wool, and tendered the price of the storage, and the defendant refused to re-deliver the wool; that the wool was worth fifty cents per pound, which value ($320), or the wool, he claimed.
He also added an account for the proceeds of a bill of exchange for $500, deposited with the defendant by Joseph Peirce, to be collected and paid to the plaintiff, less the account of Joseph Peirce; that it had been collected, and there was a balance thereon due the plaintiff of $200.50; that the money is legally and equitably the plaintiff's, and he demands it.
The citation was served on the 1st of November, 1861, but the case was not tried until 1st May, 1866.
The defendant plead the general issue, and substantially that the wool was stored with him by Joseph Pierce (not the plaintiff), and that the wool and money were taken from him by a sequestration proceeding by the Confederate States court, as the property of Joseph W. Pierce, an alien enemy.
This plea was doubtless based upon the 4th section of the eleventh ordinance of the convention of 1866 in favor of Confederate States receivers. Pas. Dig. p. 950, § 4. At the trial, the defendant moved for a continuance, upon the sworn ground that he had not been able to procure the record in the sequestration suit. The motion was overruled, to which there was no bill of exceptions, and yet the supreme court considered the affidavit for continuance. At the trial there were three “bills of exceptions” signed by the counsel and countersigned by the judge. They were to the effect, that the evidence of Joseph Peirce was improperly admitted, he being interested; that the receipt in the statement of facts was improperly admitted, because Joseph Peirce was a party to the receipt and not a party to the suit, and because the receipt did not show that it was for the wool in controversy, but for a large amount of wool stored by Joseph W. Peirce and W. A. Peirce; and that the evidence of John Ireland, the Confederate States receiver, to prove the sequestration, was improperly excluded.
The statement of facts showed that the plaintiff proved the following receipt:
The weights of the sacks were given at the bottom. There was proof tending to show that the wool was the property of the plaintiff, although it was packed up with his brother's and sent to the defendant. The sheep from which it was clipped were proved to be the plaintiff's. The demand and price of storage were proved as averred, and that the defendant refused to re-deliver it, unless the plaintiff should satisfy him that he, plaintiff, was authorized to receive it, or would indemnify him in case the wool should be seized by the Confederate authorities. He also proved a letter of the plaintiff to the defendant, dated in August, 1861, in which he acknowledged “that the draft is paid, and you can have the money at any time should you want it.” He also proved an account current between Joseph W. Peirce and the defendant, in which the defendant acknowledged the payment of the draft, $500, and stated a balance in favor of Joseph W. Peirce of $200.50.
The defendant's clerk swore that he furnished this account to the plaintiff, and that the plaintiff demanded the money, and the defendant refused to pay, unless the plaintiff would indemnify him against the Confederate authorities. Joseph W. Peirce swore that he had no interest in the wool or the money; that the wool was extra, and worth fifty to fifty-five cents per pound; that the witness drew the draft in controversy on New York in Stachely's favor for $500, and that Stachely advanced him $100, and agreed to collect it and pay the balance to the plaintiff, and that the said balance was the absolute property of the plaintiff and witness had no interest in it, and that the witness left New Braufels on the 24th of May, 1861.
The defendant's proof showed that the wool was stored by the plaintiff and J. W. Peirce, and that, in the opinion of the witness, it was only worth twenty-five or twenty-six cents per pound.
John Ireland swore that he was the Confederate States receiver, and that his returns were made before the Confederate court at Austin. There were no instructions. The jury returned a special verdict “for the plaintiff, and assessed the value of the wool at fifty cents per pound, which will be, for six hundred and forty pounds, the sum of $320, and also the balance due on the draft of $200.50, and interest from the 1st day of November, 1861, to this day on $200.50, the amount of the balance due on the draft.”
Upon this verdict the court rendered a judgment of $590.34. The defendant moved for a new trial, upon the various rulings of the court, and because the verdict was contrary to the evidence; which motion being overruled, the defendant appealed, and assigned for error the overruling of the motion for continuance, the permitting the receipt to be read in evidence, the excluding the evidence of John Ireland, the permitting Joseph W. Peirce to testify, the erroneous instructions (there were none), the verdict of the jury, and the overruling of the motion for a new trial.
Chandler & Turner, for appellant. The...
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