Winston v. Taylor

• Decision Date: 31 January 1859
• Parties: WINSTON et al., Plaintiffs in Error, v. TAYLOR, Defendant in Error.
• Court: Missouri Supreme Court

28 Mo. 82

WINSTON et al., Plaintiffs in Error,

v.TAYLOR, Defendant in Error.

Supreme Court of Missouri.

January Term, 1859.

1. A defendant can not be permitted to introduce evidence to support a defence to the action not set up in his answer.

2. Where property is bailed to a partnership, one partner can not absolve himself from liability to a bailor, without the latter's consent, by retiring from the firm. Where, however, property is not bailed for any definite time, but the bailor may take the same away at any time, a retiring partner may give notice to the bailor of his retiring and may require him to take away the bailed property; if the bailor should then permit it to remain after the expiration of a reasonable time, he must look to the remaining partners; the retiring partner would be absolved from liability for loss occurring after his retirement.

3. A judgment obtained in a sister state upon notice to the defendant by publication only, there being no appearance of the defendant, will be deemed null and void outside the state in which it is rendered.

Error to Miller Circuit Court.

Claybrook's testimony, referred to in the opinion of the court, was to the following effect, that he had heard Taylor say in California to some of the plaintiffs that he had sold his interest in the ranche, and intended coming home to Missouri and told them to go down and see about their stock; chat “they talked like they would go down.” The fifth and sixth instructions alluded to are as follows: “5. If Taylor sold his interest in the ranche and notified defendants or either of them to go and get their stock, the defendant can not be affected by the declarations of Amick or any other of the partners after such sale, notice and request, as to any thing which happened after such sale. 6. If the defendant sold out his interest in the ranche and notified plaintiffs or either of them of such sale, and requested them to go and take charge of their stock, he is not liable for any loss of the same, if such loss happened after such sale, notice and request.”

Edwards & Ewing, for plaintiffs in error.

I. The circuit court gave contradictory instructions to the jury. The seventh instruction asked and given for the plaintiffs is in conflict with the fifth and sixth instructions given for the defendant and calculated to mislead the jury.

II. The court erred in instructing the jury as to the burden of proof in the case as declared in defendant's first instruction. The defendant having received the property of plaintiffs, he was bound to account for it when called upon by plaintiffs, and the burden of proof was on him to excuse himself for such failure.

III. The court erred in permitting the evidence of George W. Claybrook to go to the jury. No such defence is set up in defendant's answer as is made by that evidence, and the evidence was therefore incompetent.

IV. The court erred in sustaining the defendant's demurrer to plaintiffs' original petition. The plaintiffs declared on a judgment between the parties rendered by a court of competent jurisdiction in the state of California. The service was by publication under the statute of that state. (Story's Conflict of Laws, § 608.)

Parsons, for defendant in error.

I. The circuit court erred in striking out that part of defendant's answer setting up the statute of limitations in bar of the recovery sought. The foreign judgment was the foundation of the action; it not appearing that such judgment is regular or authorized by the laws of California, the demurrer was well sustained to the original petition. The amended petition set up another cause of action, and it was competent for the defendant to plead the statute to such action if it had not occurred within five years, which was a question of fact for the jury.

II. The circuit court should have sustained the defendant's motion to strike out all of defendant's amended petition. It was a new cause of action different from that set out in the original petition. There was no error in admitting the evidence of G. W. Claybrook, which was competent to show care and diligence on the part of the defendant, which was the gist of the matter in controversy, and any evidence tending to show care and prudence in regard to the property of plaintiffs while in charge of defendant was competent in his defence. (1 Parsons on Contracts, p. 621.)

IV. The burden of proof in this case as to negligence or want of care was upon the plaintiffs, and the defendant was not bound to prove affirmatively that he used reasonable care. (See Parsons on Contracts, 606, 621.) The defendant's first instruction was therefore proper.

V. There is no conflict between the plaintiffs' seventh instruction and the fifth and sixth instructions asked for by defendant; the promise to ranche the stock was for an indefinite time; defendant therefore had the right to require plaintiffs to receive the stock, and they having failed to do so defendant was discharged from further liability. If there was a conflict in...