Stout v. Lewis

• Decision Date: 31 March 1848
• Citation: 11 Mo. 438
• Parties: STOUT v. C. & T. LEWIS.
• Court: Missouri Supreme Court

11 Mo. 438

STOUT

v.C. & T. LEWIS.

Supreme Court of Missouri.

March Term, 1848.

APPEAL FROM THE ST. LOUIS COURT OF COMMON PLEAS.

CROCKETT & BRIGGS, for Appellant.

1. The plaintiffs were not entitled to recover without proof of their partnership. 2. The plea of the general issue denied the partnership of Anson and the defendant, and it was therefore incumbent on the plaintiff to prove it. 3. The defendant's name not in any manner appearing on the bill, he could not be held as an acceptor without proof either that he did in point of fact accept it by the name of George Anson & Co, or that he was at the date of the acceptance a member of said firm--all of which was denied by the plea. 4. The affidavits disclose due diligence on the part of defendant and his counsel, and such a surprise as should have been relieved against by a new trial in a cause having a meritorious defense.

SHREVE, on same side.

1. In a suit by persons as partners, plaintiffs, a partnership in fact must be proven. Campbell & Maison v. Hood, 6 Mo. R. 211; Lockridge & Pilcher v. Wilson, 7 Mo. R. 560; Dempse v. Harrison & Glasgow, 4 Mo. R. 267. 2. In a suit by strangers against partners, it is necessary to fix a liability, if not to proof an actual partnership, and the statute which admits the evidence Rev. Stat. p. 819-20) any instrument of writing charged to have been executed by the other party, only dispenses with proof of the handwriting, where there is no plea of non est factum. 3. There was no evidence introduced to show that defendant, Stout, composed the company who is charged to have accepted the bill, nor was their any evidence to establish a partnership between C. & T. Lewis, who yet sued as partners. 4. The affidavits show good cause for a new trial. The Supreme Court have repeatedly inforced a new trial for cause, when they have thought the court below erred in not granting the same.

SCOTT, J.

This was action of assumpsit on a bill of exchange, brought by appellees against the appellant, on which they recovered a judgment on a trial which took place in his absence and that of his counsel. After verdict, a motion was made to set it aside on the affidavits of the appellant and his counsel, which substantially stated that the appellant, with his counsel, was in attendance at the opening of the court until another cause was taken up for trial, which was unexpectedly terminated by a compromise; that the appellant had been advised by counsel that he had a good and meritorious defense to the action. That his counsel left the court-house when the other trial was progressing, to see his sick family, and was assured that the trial of the cause would proceed, and whilst the counsel of the defendant was addressing the jury in anticipation of the defense. That afterwards, the trial was suddenly arrested by a compromise in the midst of it.

This court has repeatedly held parties to suits to the negligence of their counsel or attorneys. If parties were not responsible for agents voluntarily chosen by themselves, it would scarcely be possible to get along with the business of courts. A door would be opened to...