State ex rel. Little v. Donnelly
| Decision Date | 08 February 1881 |
| Citation | 9 Mo.App. 519 |
| Parties | STATE OF MISSOURI, TO THE USE OF IRWIN E. LITTLE, Defendant in Error, v. BERNARD DONNELLY ET AL., Plaintiffs in Error. |
| Court | Missouri Court of Appeals |
1. Where property levied upon is claimed by a third person, and the execution creditor thereupon executes and delivers to the sheriff an indemnifying bond, the claimant has a right of action upon the bond as well as an action of trespass against the principal and sureties therein.
2. That the bond indemnifies the sheriff, if otherwise conditioned accordin law, will not prevent an action upon it in the name of the State to the use of the claimant, even without an assignment by the sheriff.
3. A contract by which the former owner of a business agrees to work for his successor at a salary equal to one-half of the net profits, each agreeing to pay one-half of the outstanding indebtedness, is not a contract of partnership.
4. An instruction that the delivery of “actual and physical possession” of personalty sold is necessary to pass title as against creditors of the seller, is properly refused.
5. The incompleteness of an instruction, if it is not misleading, and if no fuller instruction is asked, is not ground for a reversal.
6. It is the duty of courts, and not juries, to interpret contracts.
ERROR to the St. Louis Circuit Court, THAYER, J.
Affirmed.
SMITH & McCANN, for the plaintiffs in error, cited: Wright v. McCormick, 67 Mo. 426; Lessem v. Herriford, 44 Mo. 323; Claflin v. Rosenberg, 42 Mo. 439; Bishop v. O'Connell, 56 Mo. 158; Bergert v. Borchert, 59 Mo. 80.
JOSEPH S. LAURIE, for the defendant in error.
This is an action on an indemnifying bond given by the defendants below to the State of Missouri, to indemnify John Finn, sheriff, against damages and costs in consequence of a certain levy made by him on the property of Samuel A. Smith, defendant in an execution, at the instance and request of the defendants Bernard Donnelly and Jacob Nickles, plaintiffs in said execution. The cause was tried below by a jury. There was a verdict and judgment for the plaintiff, a motion for a new trial, which was overruled, and the defendants prosecute this writ of error.
It appears that prior to July 30, 1877, Samuel A. Smitl and Albert G. W. Smith were engaged as partners, in the city of St. Louis, in the business of selling ice and coal under the firm-name of the Troy Ice Company. On that day Irwin E. Little, the plaintiff below, bought out the interest of Albert G. W. Smith for $375 in cash, and that of Samuel A. Smith for $325, for which he gave his note, payable in two years. A bill of sale was duly executed by the Smiths to Little, and recorded in the office of the recorder of deeds in the city of St. Louis. At the same time the plaintiff and Samuel A. Smith entered into the following written agreement:--
“This agreement, made and entered into this 30th day of July, A. D. 1877, by and between Irwin E. Little and Samuel A. Smith, both of the city and county of St. Louis, and State of Missouri, witnesseth: That, whereas, the said Irwin E. Little, party of the first part, has this day purchased and become the owner of all the goods, chattels, and good-will of the Troy Ice Company, of which said company the said Samuel A. Smith, party of the second part, was a member: Now, for and in consideration of the amounts hereinafter mentioned, the said party of the second part, Samuel A. Smith, hereby agrees to work and labor for the said Irwin E. Little, and to take charge of and manage the work necessary to be done in carrying on the business of buying and selling ice and coal, from the same place and substantially in the same manner as has been heretofore done by the Troy Ice Company, giving to the said business his time and attention, and in matters pertaining thereto shall at all times do that will best advance the interests of the said Irwin E. Little.
The said Irwin E. Little is to keep, or cause to be kept, true and accurate books of all the transactions done by him in the way of sale of ice, and is to pay over to said Samuel A. Smith one-half (1/2) of all the net profits that shall be made in the sale of ice, coal, hauling, etc., after deducting the expenses and losses to the stock and property of the said Irwin E. Little that shall accrue and be made by the said Irwin E. Little in the business in which he is engaged; and the profits so made and received by the said Samuel A. Smith he shall receive and accept as payment in full for the labor and time he shall expend in the employ of the said Irwin E. Little. And it is further agreed, that the said Irwin E. Little shall be responsible for and pay one-half (1/2) of the expense account now outstanding and unpaid that has been made by the Troy Ice Company since the 26th of March, 1877, to wit: rent now due for lot; fuel bill of $50 to $55; horse-shoeing bill, $7.50; note of $42.10; and one-half of the amount due on a chattel mortgage due to the Mississippi Ice Company.
This agreement shall continue until such time as the parties hereto shall mutually agree to dissolve connection with each other: Provided, that either party may terminate it at any time by giving to the other twenty days' notice of his intention so to do, said notice to be in writing.
In witness whereof, the parties hereto have hereunto set their hands and seals, the day and year first above written.
| IRWIN E. LITTLE. |
| [Seal.] |
| SAMUEL A. SMITH. |
[Seal.]”
Samuel A. Smith continued to conduct the business under this contract, under the supervision and control of Little, at the office of the Mississippi Ice Company, of which he was secretary, he receiving the moneys collected from the business and paying the rent, bills for which were made out to him in his name, and he making frequent visits of inspection to the premises, until January 18, 1878, when, becoming dissatisfied with Smith, he sent him the following two notices:--
“JANUARY 18, 1878.
Mr. S. A. Smith.
IRWIN E. LITTLE.”
“JANUARY 18, 1878.
Mr. S. A. Smith.
IRWIN E. LITTLE.”
Five days after the date of these notices, Smith confessed a judgment in the Circuit Court of the city of St. Louis in favor of Donnelly and Nickles, defendants below, for the sum of $400 and costs, which, on the following day, was levied on certain personal chattels included in the above-named bill of sale to Little. On the same day Little made a demand on the sheriff for the property, in conformity with the statute (Act March 3, 1855, sect. 3; Rev. Stats., p. 1555, sect. 3), claiming it by virtue of absolute ownership. On the following day the property was appraised at $288.75, and the defendant Bernard Donnelly thereupon executed, with the defendants William H. Wilson and Patrick Donnelly as sureties, the bond of indemnity which is here sued on. This bond was, on the thirteenth day of May, 1878, assigned by John Finn, sheriff, to the plaintiff, Little, as the party in interest, who thereafter brought this suit upon the same.
At the trial, the plaintiffs in error (defendants below) objected to any testimony being received under the petition, for the reason that there was a defect of parties, in this: that the plaintiff, Little, could not bring suit on the bond in the name of the State, but that the only person entitled to sue was John Finn, the sheriff. This point, we think, was not well taken. The act of March 3, 1855, under which the bond was taken, is still in force. Dodd v. Thomas, 69 Mo. 364. The statute itself (sect. 4) gives an action upon the bond to the claimant, in the name of the State to his own use; and this action was so brought. Nor is there any force in the objection that, because the condition of the bond was to indemnify the sheriff, John Finn, he alone could sue upon it, and could not part with his right of action by assigning the bond to the claimant of the property. The statute (sect. 2) recites that the bond “shall be made payable to the State of Missouri, conditioned that such plaintiff will pay to such claimant all damages that he, the said claimant, may sustain in consequence of such levy, and in consequence of any sale which may be made under and by virtue of such execution or attachment.” The condition of the bond sued on is, that “if the plaintiff shall indemnify said John Finn, sheriff, against all damages and costs which he, said John Finn, shall sustain in consequence of such seizure and sale of the property aforesaid under said writ, and, moreover, shall pay to and satisfy said claimant, and any person or persons claiming title to said property, all damages which such person or persons may sustain in consequence of such seizure and sale, then this obligation shall be null and void; otherwise it shall remain in full force and virtue.” For the purposes of this action the clause of the bond which indemnifies John Finn, sheriff, may be rejected as surplusage, and still it remains a bond in strict conformity with the statute. Nor is it a good objection that John Finn could not confer a right of action upon the claimant by assigning the bond to him. No assignment was necessary to confer a right upon the claimant to bring an action on the bond. The statute (sect. 4) gives the claimant the right to sue without any assignment, and the assignment on the back of the bond in this case may well be rejected as surplusage. The law seems to be, that when a person other than the defendant in the execution claims the property levied on, in conformity with the statute, as was done in this case, and thereupon the plaintiff in the execution executes and delivers to the sheriff a sufficient in...
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