Wood & Wood v. Steamboat Fleetwood

• Decision Date: 31 March 1854
• Citation: 19 Mo. 529
• Court: Missouri Supreme Court
• Parties: WOOD & WOOD, Respondents, v. THE STEAMBOAT FLEETWOOD, Appellant.

19 Mo. 529

WOOD & WOOD, Respondents,

v.THE STEAMBOAT FLEETWOOD, Appellant.

Supreme Court of Missouri.

March Term, 1854.

1. An uncertified deposition may be read in evidence, after the death of the witness, upon the testimony of the officer that the deposition was regularly taken.

2. An allegation in a petition, not material to the plaintiff's right of action, is not admitted by a failure to deny it in the answer. Thus the value of an article for which a plaintiff seeks to recover is not admitted if not denied.

3. An inconsistent instruction is erroneous.

Appeal from St. Louis Court of Common Pleas.

This was an action against a boat for the non-performance of a contract of affreightment. The petition stated that the plaintiffs shipped on board of the boat, at Pittsburgh, 190 sacks of malt, which the master contracted to deliver to the consignees, at St. Louis, for a freight of thirty cents a hundred; and that the master had failed to deliver the same, although the consignees had tendered the amount of the freight. The defendant answered that the freight agreed upon was forty cents a hundred, and that he only retained the malt because the consignees refused to pay this rate of freight. The answer contained no denial of the value of the malt. The deposition of William Wood was taken for the plaintiffs in Pittsburgh, and suppressed before the trial, because improperly certified. At the trial, the deposition of Parkinson, the officer who took the deposition of Wood, was read in evidence. He testified that he was an alderman and ex-officio justice of the peace, and that the deposition of Wood was taken at the office of the plaintiffs on the 21st of June, 1851; that the deponent was sworn to testify the whole truth of his knowledge touching the matters in controversy in this cause, was examined and cross-examined, and that his deposition was reduced to writing in his (Parkinson's) presence, and subscribed by said Wood; and that Wood had since died. The plaintiffs were then permitted to read in evidence the deposition of Wood, the defendant objecting. Wood testified that he was the plaintiffs' drayman, and delivered the malt on board of the boat, and received a dray ticket, which he produced, signed by the clerk of the boat, in which the freight was put down at thirty cents a hundred. At the close of the evidence the court gave several instructions, the third of which asserted that the value of the malt, not being denied in the answer, was admitted to be as stated in the petition. The fourth instruction is set out in the opinion of the court. There was a verdict and judgment for the plaintiffs.

J. A. Kasson, for appellant.

I. The court erred in admitting the deposition of Wood, accompanied by that of Parkinson. 2 Yeates, 232 (note).

II. The court erred in instructing that the answer admitted the value of the malt, which was not specifically alleged in the petition, but only by way of recital.

Leslie & Barrets, for respondents.

RYLAND, Judge, delivered the opinion of the court.

1. The point taken by the appellant, in regard to the admission of the deposition of Parkinson and Wood is, in the opinion of this court, not tenable. The deposition of Wood was suppressed before, because the certificate of the justice was not in accordance with the statute law....