Tutt v. Cloney

• Decision Date: 31 January 1876
• Parties: DENT G. TUTT, Appellant, v. THOMAS W. CLONEY, et al., Respondents.
• Court: Missouri Supreme Court

62 Mo. 116

DENT G. TUTT, Appellant,

v.THOMAS W. CLONEY, et al., Respondents.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.Slayback & Haeussler, for Appellant, cited Smith vs. Sterritt, 24 Mo., 260; Williams vs. Whitlock, 14 Mo., 552; McMurray vs. Taylor, 30 Mo., 263; Mudd vs. Bast, 34 Mo., 468; Sto. Part., §§ 328, 335, 341; Bryant vs. Hawkins, 47 Mo., 410; Powell vs. Charles, Adm'r, 34 Mo., 485; Boatman's Sav. Inst. vs. Mead, Adm'r, 52 Mo., 543; Milliken vs. Loring, 37 Me., 410; Colly Part., §§ 118, 546; Harny vs. Cricket, 5 Maul. & Selw., 336, 344; Fox vs. Hanburg, Cowp., 445; Pars. Part., 388, 390, 395, 396; 4 DeGex. M. & G., 542; Temple vs. Seaver, 11 Cush., 314; Mayson vs. Beazley, 27 Miss., 106; Morse vs. Bellows, 7 N. H., 568; Gow. Part., 253; Johnson vs. Kellogg, 3 Cal., 343; Wood vs. Bradick, 1 Taunt., 104; 5 T. R., 601; 7 Taunt., 157; 4 Ves., 36; 31 Ill., 62; 16 Ill., 341; Deering vs. Flanders, 49 N. H., 228; Gordon vs. Freeman, 11 Ill., 14; Kenney vs. Altvater, 77 Pa. St., 34; Am. Law. Reg., vol. 14, p. 758; Hickman vs. Kunkle, 27 Mo., 404; 3 Kent Com., § 43; Daly vs. Bates, 11 Johns., 544; Mann vs. Locke, 11 N. H., 246; Cody vs. Kyle, 47 Mo., 346; Richardson vs. Moies, 31 Mo., 430; McKay vs. Underwood, 47 Mo., 185.

G. S. Van Waggoner, with Blodgett & Dickson, for Respondents, cited Gow. Part., 398; Pars. Part., 172, 198; Freeman vs. Bloomfield, 43 Mo., 391; 2 Durn. & E., 483; Russell vs. Grimes, 46 Mo., 413; Berryhill vs. McKee, 1 Humph., 31; Rootes vs. Wellford, 4 Mumf., 215; Murray vs. Bogert, 14 Johns., 318; Halsted vs. Schmelzel, 17 Johns., 80; Westerlo vs. Everston, 1 Wend., 532; Atwater vs. Fowler, 1 Hall [N. Y.] 180; Chadsey vs. Harrison, 11 Ill., 156; Davenport vs. Gear, 2 Scam., 495; Goldsborough vs. McWilliams, 2 Cranch C. C., 401; Haldeman vs. Haldeman, Kemps, 559; Pate vs. Williams, 5 Cr. C. C., 154; Barry vs. Barry, 3 Cr. C. C., 120; Barns vs. Nottingham, 60 Ill., 531; Lamalere vs. Caze, 1 Wash., C. C., 435.

WAGNER, Judge, delivered the opinion of the court.

This was an action brought by the plaintiff, as assignee of Tutt & Baker, to recover an alleged balance due from the firm of Cloney, Crawford & Co., which firm was composed of the parties last named and Thomas L. Price. Pending the action Price died, and his executrix and executor were made parties. At the trial the case was dismissed as to Cloney and Crawford, and it was then prosecuted solely against Price's representatives. The plaintiff had a judgment in the court at special term, but the judgment was reversed at general term, and the plaintiff appealed to this court.

The contention between the parties, and the liability of Price, spring entirely out of a transaction respecting the purchase of a large quantity of flour on which a loss was sustained. The firm of Cloney, Crawford & Co. were carrying on a trade in general merchandise, and also engaged in the forwarding and commission business. Crawford in the winter of 1862-3, assuming to act for his firm, entered into an engagement with Tutt & Baker and another party to purchase about four thousand barrels of flour, for shipment to the eastern market. The parties were to share the gains in equal proportions, and to submit to corresponding losses, if any. In the fall of 1863 Price retired from the firm, but it was still carried on by the remaining parties in the original style. After the flour was purchased and shipped it greatly decreased in value, and was held for a long time by the parties in the hope of obtaining higher prices, but this expectation being delusive, it was finally sold at considerable loss, which Tutt & Baker, who forwarded it, paid, and the amount now in controversy is the share of the loss for which the firm of Cloney, Crawford & Co. was liable. The settlement and adjustment of the amount was made by Crawford in 1865, after the withdrawal of Price from the firm.

It appeared in evidence that the transaction in flour was a matter outside of the scope and legitimate business of Cloney Crawford & Co., and that Crawford was the active man engaged in it, but there was evidence tending to show that Price was consulted about the enterprise and gave it his approval, and furnished part of the money. There was also evidence of a contrary character, but with the weight or credibility of testimony we have nothing to do. If the declarations of law given by the court trying the cause were correct, then the judgment rendered on the verdict cannot be interfered with.

The following instruction was given for the plaintiff, towit: “If the jury believe from the evidence, that the firm of Cloney, Crawford & Co., while composed of Thomas W. Cloney, Thomas S. Crawford and Thomas L. Price, did, prior to the dissolution thereof, become indebted to the firm of Tutt & Baker on account of loss incurred in a speculation in flour, and that the account stood open and unadjusted until on or about Nov. 9th, 1865; and if the jury further believe from the evidence, that on or about that day the amount of such account was ascertained by and between Crawford, on the part of Cloney, Crawford & Co., and John F. Baker, on the part of Tutt & Baker, and that the amount so ascertained was agreed upon by said parties as the amount due to close said account, and that afterwards Baker, for a valuable consideration, transferred all his interest in said claim to plaintiff, and that the same remains due and unpaid, then the jury will find for the plaintiff the amount so found due, with six per cent. interest per annum, from the beginning of this action.”

The court then of its own motion, gave this instruction: “If the jury believe from the evidence that the transaction out of which the alleged indebtedness of defendant to plaintiff accrued, to-wit, a speculation in flour, was not of the usual and ordinary business for the transaction of which the firm of Cloney, Crawford & Co. was formed, and in which it was at the time engaged, and that the only member of said firm who engaged in the speculation was Crawford, then the jury will find for the defendant, unless they believe that said Crawford had...