Sublett v. Noland

• Decision Date: 30 April 1839
• Citation: 5 Mo. 516
• Court: Missouri Supreme Court
• Parties: SUBLETT & VASQUIES v. NOLAND.

5 Mo. 516

SUBLETT & VASQUIES

v.NOLAND.

Supreme Court of Missouri.

April Term, 1839.

ERROR TO THE CIRCUIT COURT OF JACKSON COUNTY

ADAMS & HAYDEN, for Plaintiffs. For the plaintiffs in error, it is contended that the court erred in refusing the instruction asked by the defendants below. That the motion for a new trial and in arrest, should have been sustained: 1. Because the original agreement between the parties was not filed with the justice before suit brought. See Statutes of Mo., Digest 1835, p. 350, §§ 6, 7, 8; 3 Mo. R. 233. 2. Because the contract sued upon was with several others besides the defendant in error, and they should have been parties plaintiffs in the action. See Chit. Plead. 9-10.

BIRCH, for Defendant.

NAPTON, J.

Noland sued Sublett & Vasquies before a justice of the peace, for certain services performed by him in hauling furs, &c., from Independence to Platte river, and filed with the justice a bill of the items of his account. He also filed a paper, purporting to be the agreement made by himself and several others who were employed by defendants in the same business, the substance of which is, that Sublett & Vasquies agreed to pay each of the wagoners, including Noland, a certain price per day for hauling, specifying the amount each wagon was to contain and the price per hundred weight. This agreement was signed by all the parties above named, and was the contract on which the plaintiff founded his bill of items. Noland obtained judgment before the justice, and the defendants appealed. On the trial in the Circuit Court, it appeared in evidence, that the paper purporting to be the agreement on which the account of Noland was founded, was only a copy of the original agreement, and that the original itself had not been filed with the justice at the time the summons issued. It was also proved that the copy was a correct one; that the original was in evidence before the jury on the trial before the justice, and brought there by a subpoena duces tecum; that after the trial before the justice, the attorney of defendants had gotten possession of it. The plaintiff served a notice on said attorney in court to produce this original agreement, which the attorney declined doing. Thereupon plaintiff offered the copy alluded to above in evidence, and the court permitted it to be read. There was much evidence in relation to the performange of the services under the contract, and in relation to some off-sets claimed by the defendants; but as the counsel have abandoned all the points which would apply to the sufficiency of the testimony, it is deemed unnecessary to rehearse it. The only points insisted on in this court are: 1. That the contract in this case having been made conjointly with Noland and several others besides the plaintiff, they should have been parties plaintiffs in the action. 2. That the court erred in not arresting the judgment, because the original agreement between the parties was not filed with the justice before suit brought.

1. The agreement under which plaintiff's services were rendered, is as follows: “An article of agreement made and entered into this, the fifth day of September, eighteen hundred and thirty-six, between Andrew Sublett and Lewis Vasquies, trading under the firm and style of Sublett & Vasquies, of the one part, and Joseph Wear, L. Bank, James Woorley, Smallwood V. Noland, Gilliam Bailey and Dana Smith, of the other part, witnesseth: that the said Sublett & Vasquies have this day hired the said Wear, Banks, &c., &c., to haul from the river Platte, thirty six miles below the forks thereof, certain articles of fur and buffalo robes, for which the said Sublett & Vasquies are to pay to the said parties, from the date hereof, the sum of three...