State ex rel. Griggs v. Edwards

• Decision Date: 31 October 1883
• Citation: 78 Mo. 473
• Parties: THE STATE ex rel. GRIGGS v. EDWARDS et al., Appellants.
• Court: Missouri Supreme Court

78 Mo. 473

THE STATE ex rel. GRIGGS

v.EDWARDS et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Bates Circuit Court.--HON. F. P. WRIGHT, Judge.

AFFIRMED.

Bassett & Lashbrooke and T. J. Galloway for appellants.

Smith & Abernathy for respondent.

WINSLOW, C.

This was a suit brought in the circuit court of Bates county, Missouri, by W. M. Griggs, as administrator de bonis non of the estate of S. M. Staley, on the bond of J. J. Miller, formerly administrator of said estate, to recover of said Miller and defendants, as his securities, the sum of $825.20, for an alleged breach of said bond. The petition is in all respects formal, and alleges the following as a breach of the bond: “That on the 27th day of October, 1875, said Miller as said administrator sold to one James T. Williams, at public sale, cattle belonging to said estate, to the amount of $825.20; that said cattle were delivered to said Williams, who received the full benefit of the same; but defendant Miller wholly failed and neglected to take from said Williams a note with security, or any note whatever; that said Williams has failed and refused to pay the said sum of $825.20, and has, since said sale, become wholly insolvent, so that said amount cannot be collected from him; that said Miller never took any steps as administrator, as by law required, to secure the payment of said sum, or to collect the same from said Williams.” Miller was not served and the suit was dismissed as to him. The answer of the sureties was a general denial. At the trial the plaintiff had judgment for $743.87; to reverse which the defendants present the record to this court by appeal.

On the issues joined by the pleadings, “plaintiff offered evidence tending to sustain the issues upon his part,” is the only statement of the bill of exceptions as to plaintiff's main evidence; and, as to the defendants', it is only stated that, “defendants offered evidence tending to prove the issues on their part.” The record of the Bates county probate, court, removing Miller and appointing plaintiff, was offered in evidence by the plaintiff, and objected to by the defendants, and the objections overruled; but counsel for appellants make no point in their brief upon this action of the court, and we, therefore, omit all further allusion to the subject herein, assuming that the question has been abandoned.

The only question in this case of any importance arises on the admission on the part of plaintiff, against the objections of the defendants, of certain evidence, in addition to the main evidence of plaintiff, which tended “to sustain the issues on his part,” which appellants maintain was not admissible under the above quoted allegation, nor responsive to the issues made by the pleadings. This evidence is substantially as follows: A promissory note dated October 27th, 1875, payable to J. J. Miller or order, as administrator of the estate of S. M. Staley, for $825, due twelve months after date, with interest from maturity at ten per cent per annum, signed by J. T. Williams, D. W. Morrill and Kasper Bauman. Wm. M. Griggs, the administrator de bonis non and substantial plaintiff here, was sworn and admitted as a witness, and permitted to testify to the following statements or admissions of Miller, the original administrator, as to the circumstances under which the above note was given: “Miller told me that he got this note from defendant, Edwards, and said he would not file it in settlement; that defendants, Wright, Sears, Edwards and Williams, told him, Miller, they wanted to put it in as a bad debt, and he, Miller, refused to do this, but said he would take it with him.” Plaintiff then offered evidence tending to prove that the makers of said note were insolvent at the time the same was given.

I.

Counsel for appellants in their abstracts of the record, which is substantially repeated in their briefs, state the legal effect of the allegations of the petition, above quoted, as follows: “The only breach alleged in the petition is that said Miller, as administrator of Staley, sold cattle, the property of said estate, on a credit of twelve months, and delivered the same to the purchaser without any note to secure the payment of the purchase price.” This is manifestly a clear misconception of the petition and case, as it is presented by the record, and renders unnecessary any examination of the question, as to the variance between the allegation and the proof, on which appellants mainly rely. No demurrer was interposed to test the sufficiency of the allegation in question, but the objection was reserved until the introduction of the evidence under the pleadings, and as a ground for motion in arrest, and is so presented here by the record. The gravamen of the complaint in this case is, that Miller, as administrator of Staley, sold cattle of the estate, at public sale, the amount of which was lost to the estate by reason of his failure to perform his duties as administrator with reference to that sale. It is a conceded fact in the case that the complaint is literally true, and the record states that the plaintiff introduced evidence “tending to sustain the issues on his part.” Appellants seek to narrow the issue by maintaining that the real charge is that the loss occurred on account of Miller's failure to take any note at all for the cattle, and that because evidence was admitted showing that an insolvent note was taken reversible error was committed. It is very well settled, in this State, that a party cannot allege one cause of action in his petition and recover on a different one made out by his evidence and submitted by his instructions. Waldhier v. Railroad Co., 71 Mo. 514; Edens v....