State ex rel. Clendenin v. Schneider

• Decision Date: 30 June 1865
• Citation: 35 Mo. 533
• Parties: STATE TO USE OF HAZARD P. CLENDENIN, Respondent, v. GEORGE SCHNEIDER et al., Appellants.
• Court: Missouri Supreme Court

35 Mo. 533

STATE TO USE OF HAZARD P. CLENDENIN, Respondent,

v.GEORGE SCHNEIDER et al., Appellants.

Supreme Court of Missouri.

June Term, 1865.

Appeal from St. Louis Circuit Court.

Davis & Evans, for appellants.

I. The Circuit Court erred in admitting the deposition of Benjamin Heaton, the whole of which was objected to; it contained much hearsay.

The statement of what Bohrman had said about his agency and the ownership of the wood ought to have been excluded. Bohrman was alive at the time of the trial, and if he was a competent witness might have been called to testify in the cause. The agency of a party cannot be proved by his own acts and declarations against one under whom he assumes to act. (Craighead v. Wells, 24 Mo. 404; Bell, to use of Davidson, v. Glover, 1 Mo. 574.)

II. The court erred in permitting counsel to ask the witness Benson, what Bohrman said about the ownership of the wood after it was attached. (Cairn v. Smith & Ker, 20 Mo. 221; State v. Mix, 15 Mo. 160; State v. Wolf, 15 Mo. 172.)

I. T. Wise, for respondent.

The suit was properly brought by Clendenin upon said bonds. They were given under the statute to enable him to sue, if the property levied on as the property of another was in fact his property. (Laws applicable to St. Louis Co. 426.)

The judgment was properly rendered. The judgment of a court sitting as a jury will not be reversed without manifest error appearing upon the record.

As there were no instructions on the law given or refused, the only question left is whether, upon the evidence, the court was warranted in rendering the judgment given by it.

This court has so often decided that it will not interfere upon the question of sufficiency or insufficiency of the evidence upon which the court below rendered its judgment, that it is not deemed necessary to cite authorities. (Presbury v. Morris, 18 Mo. 165.)

The admissions of Bohrman of his having no title to the wood, and that he was an agent for Clendenin, and had the possession of the wood as such, are good evidence, as well against Bohrman's creditors as it would have been against Bohrman himself, if he had been defending against Clendenin's action for the wood or the proceeds, if sold by Bohrman. Bohrman's creditors are subject to the same defences and the same evidence that Bohrman would be. (1 Greenl. Ev. § 171; Bell v. Glover, 1 Mo. 574, s. p.)

LOVELACE, Judge, delivered the opinion of the court.

This is an action, brought in the St. Louis Circuit Court, upon two bonds given by the appellants to indemnify an officer for selling property attached by them in certain suits of attachment, brought by appellants against one Bohrman. Henry Deer was principal in one of the bonds, with George Schneider and the other defendants as securities, and George Schneider was principal in the other bond, with Henry Deer and the other defendants as securities. Upon the trial in the Circuit Court, a judgment was rendered for the plaintiff Clendenin on both bonds, and the cause is brought here by appeal.

The points chiefly relied on for reversing this judgment are: 1. The admission of improper evidence offered by the plaintiff; 2. That there was a misjoinder of actions; 3. That the verdict was against the evidence.

On the trial, the deposition of Benjamin Heaton was offered in evidence by the plaintiff, which stated that “Peter Bohrman did take from the Macoupin creek in the State of Illinois, in June, 1861, from 125 to 150 cords of wood, in the barge Liberty; that witness was present at the time, and saw Bohrman take the wood.” In answer to an interrogatory propounded by plaintiff, the witness says: “It was Hazard P. Clendenin's wood.” The plaintiff then asked witness how he knew it was Hazard P. Clendenin's wood. To which he replied, “Because I knew said wood was cut and banked on said Hazard P. Clendenin's land; and said Peter Bohrman, at said time and place, in the presence of myself (witness), and said Hazard P. Clendenin, and others, stated that the said wood belonged to the said Clendenin, and that the said Bohrman was freighting the said wood for the said Clendenin.” This portion of Heaton's deposition was objected to as incompetent, because it contains the declarations of Bohrman, and Bohrman was a competent witness in the case.

The mere declarations of Bohrman (narrative of what had happened in the transaction) would certainly be liable to the objection that it was hearsay, and ought to be excluded; but, in this case, the title to the wood is the only question under consideration before the court. In proof of that title, the plaintiff undertakes to show that the wood was cut and banked upon his land in the State of Illinois, and to explain how it passed out of his possession into the possession of Bohrman. This transfer of possession is the leading...