State ex rel. Meramec Iron Co. v. Gaddy

• Decision Date: 31 October 1884
• Citation: 83 Mo. 138
• Parties: THE STATE ex rel. THE MERAMEC IRON COMPANY, Plaintiff in Error, v. GADDY et al.
• Court: Missouri Supreme Court

83 Mo. 138

THE STATE ex rel. THE MERAMEC IRON COMPANY, Plaintiff in Error,

v.GADDY et al.

Supreme Court of Missouri.

October Term, 1884.

Error to Texas Circuit Court.--HON. V. B. HILL, Judge

AFFIRMED.

Perry & Kelly and Smith & Krauthoff for plaintiff in error.

The action of the circuit court in excluding from evidence the tax receipt and other testimony offered was such as to preclude a recovery by plaintiff. The action of the court cut the plaintiff's case up by the root, and the only thing left for it to do was to take a non-suit. Yankee v. Thompson, 51 Mo. 241; Hageman v. Moreland, 33 Mo. 86; Koeger v. Hays, 57 Mo. 87. The circuit court erred in overruling the motion to set aside the judgment of non-suit.

L. F. Parker for defendant in error.

The non-suit was voluntary, and plaintiff was not forced thereto by any ruling of the court. The court merely ruled that in one case there was no lien, and in the other the best evidence of the amount of ore made was not offered, and the plaintiff, with a witness on the stand who had the certificates of the weigher of the amount of ore made in his pocket, refused to offer them, but apparently became displeased that he was not permitted to prove his case in his own way and in a pet took a non-suit. If this court will review the action of lower courts upon every question of evidence decided by them, without the whole case having been before them, there will be no end to the trifling and vexatious appeals that can be brought here. The plaintiff should have proved or offered to prove his whole case, and that by primary and not secondary evidence, when, if the ruling of the court was such that he could not recover, he might properly have taken a non-suit.

PHILIPS, C.

This is an action against the defendant Gaddy, sheriff of Phelps county, and the sureties on his official bond, to recover damages for an alleged wrongful seizure and sale of personal property under execution. The principal facts as disclosed by the record, are that on the 7th day of November, 1868, the relator as heirs of Thomas James, under the corporate name of the “Meramec Iron Works,” leased to William James, for a period of fifteen years, commencing the 1st day of May, 1869, and ending the 1st day of May, 1884, certain lands in Phelps county, with all farming, wood and ore lands therewith connected. The consideration of which lease was expressed as follows: “In consideration of which lease the said William James covenants with the parties of the first part that he will pay all the state and county taxes which may be assessed on said demised premises during the continuance of said lease; that he will deliver at St. James one-eighth of the pig iron made at the said Meramec Iron Works, and one-eighth of all heavy castings, and one-eighth of light castings, over and above one hundred tons annually, which may be cast at said iron works, which said castings are to be considered as pig iron.” Subsequently, on the 18th day of May, 1876, the said contract of lease was modified and altered in the following manner and extent as shown by the records of said company: “Upon application of William James, lessee, and with the consent of this company as the grantee of the heirs of Thomas James, deceased, the contract of lease entered into between the said heirs and William James on November 7, 1868, is modified and altered with the consent of said James as evidenced by his signature and seal to these proceedings in the following particulars: 1st. The rental to be one-eighth of all metal run from ore obtained from the Meramec or St. James ore banks; one-sixteenth of all metal run from ore obtained from other sources. 2. That no more than five forges shall be run on an average. * *3d. The lease, as modified, to commence on May 1, 1876, and to terminate May 1, 1878, when said original lease and all modifications thereof shall expire.

The above proceedings are agreed to by me, May 18, 1876.

WILLIAM JAMES. [SEAL.]”

On the lands embraced within the demised premises, certain crops were grown by the lessee, which were seized by the said sheriff under writs of execution in favor of the creditors of the lessee. The relator, the lessor, notified the sheriff before and at the sale that he claimed a landlord's lien on this property. The sheriff, notwithstanding, proceeded with the sale, and the property was bought by various parties and carried away. This suit is brought by said lessor on the sheriff's bond for damages. On the trial, on the rejection by the court of certain evidence offered by the relator, he took a non-suit with leave, etc. His motion for a new trial being overruled he prosecutes this writ of error.

In the progress of the trial the plaintiff offered in evidence certain tax receipts, purporting to have been executed by the collector to relator, for taxes paid by him on this land for the year 1877, for the purpose of proving, so the bill of exceptions recites, that all state and county taxes for 1877, assessed upon said premises, had been paid by the relator, and not the lessee, and to prove further the amount of such taxes so paid. This evidence was objected to by the defendants on the grounds (1) that said taxes constitute no part of the rental; (2) that the amount of said taxes were uncertain; and (3) that said James was not bound under his contract of lease with relator to pay said taxes. The court sustained the objection and excluded the receipts. The defendants contend that such taxes were never within the terms of the original contract, and...