Wales v. Nelson

• Citation: 10 Mo. 19
• Parties: WALES AND OTHERS v. NELSON.
• Decision Date: 31 March 1846
• Court: Missouri Supreme Court

10 Mo. 19

WALES AND OTHERS

v.NELSON.

Supreme Court of Missouri.

March Term, 1846.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

SHEPLEY, for Appellants.

SPALDING, for Appellee.

I. The defendants' instruction was properly refused. It asked the court to say that there could be no recovery on the second breach, because the judgment in that breach mentioned had been reversed by a subsequent judgment, & c. 1. The instruction is confused; it speaks of the judgment being reversed or annulled by a subsequent judgment, which is not the fact; for the last judgment in the case did not affect the former, which had previously been settled. 2. There could be a recovery on the second breach, because that breach sets forth a molestation of Nelson, by reason of a liability of the firm of Wales, Nelson & Co., and a compulsory payment of money to him. 3. The judgment was rendered against them all, notwithstanding defense was made, and Dexter T. Wales, who was co-defendant with Nelson in that suit, was bound by the bond to keep Nelson harmless, failed to do so, so that the bond was forfeited by that molestation, and Dexter T. Wales is estopped from denying the molestation. 4. In that suit the claim sued on was proved to be a liability of the firm of Wales, Nelson & Co. against all the members of that firm, and the money was forced from Nelson in consequence of it. Why did not Dexter T. Wales prove payment if it had been paid in the six months? 5. The defendants proved by their own witness, Morris Collins, that the debt was a liability of said firm, and that there was not a particle of proof that it had ever been paid. 6. The subseqnent non-suit in the case, after the money had been collected on execution, raises, no presumption that the debt had been paid within six months, which alone could have prevented a forfeiture. 7. Said subsequent proceedings were improperly admitted in evidence.

II. No exception was taken to the giving of the plaintiff's instruction, therefore no advantage can now be taken of it if wrong. 8 Mo. R. 234, Bompart v. Boyer; 4 Mo. R. 18.

III. It does not appear from the bill of exceptions that the whole of the testimony is incorporated therein; it is therefore impossible for the court to say that there was error in refusing the defendants, or giving the plaintiff's instruction. Facts may have been proved, as for instance, admissions, promises, &c., which would have justified the court.

IV. Orrin Wales was properly excluded from testifying for defendants. He had been one of the firm of Wales, Nelson & Co., and on payment of this demand to Nelson by Dexter T. Wales, would be liable to contribution prima facie. 1. He was not made competent by the certificate of discharge in bankruptcy, for it does not appear that it was given in evidence. It is said he produced it, but that could be of no avail, unless it were given in evidence. 2. The bill of exceptions does not show that the whole of the testimony given in the case is included in it, a subsequent promise of Orrin Wales to pay or be responsible for his contributory share of this debt, may have been proved, thus making him liable notwithstanding his discharge.

V. The defendants were estopped to deny that the liability on which Nelson was forced to pay the money sued for, was the liability of the firm of Wales, Nelson & Co., and therefore the testimony of Orrin Wales was properly excluded.

NAPTON, J.

This was an action of debt on a bond, brought by Reua Nelson, against Dexter T. Wales, John Smith and William H. White, the former as principal, and the latter securities. The condition of the bond was that: “Whereas the firm of Wales, Nelson & Co., of which Dexter T. Wales and Reua Nelson were members, had been dissolved, and that said Nelson had transferred to said Wales all his interest in the effects of said concern, for certain considerations, to-wit: six thousand dollars in notes due said concern, then transferred to him, and his own private account due said concern, then declared satisfied and canceled, and also a bond of indemnity against the debts due by said concern, that therefore, if the said Dexter T. Wales should well and truly indemnify and save harmless the said Nelson, against all debts, demands and liabilities of said firm of Wales, Nelson & Co., owing; or to be due by said late firm, or for which said late firm was or should be bound, and should discharge or satisfy the same within six months from the date of said bond, so that Nelson should never be molested by or on account of them, or any of them, then said bond should be void, otherwise it should be and remain in force.”

Among other breaches, the declaration sets forth a suit commenced more than six months after the date of said bond, by the South Bridge Bank, against Orrin Wales, Reua Nelson and Dexter T. Wales, composing...