Henderson v. Skinner

]. Assumpsit — Contracts.—Plaintiff furnished defendant with five hundred dollars, with which, by agreement, he was to enter certain lands for plaintiff. Defendant used only a part of the money in entering the lands, and appropriated the balance to his own use— Held, that the plaintiff may recover under the common counts in assumpsit, the amount not so applied, together with six per cent, interest theron, from the time it ought to hare "been so applied. . 2. Same. — where a person sells personal property to another, and after receiving the pay for it, converts the property to his own use, he is liable, under the common counts ill assump-sit, to the purchaser for the price paid and interest.

APPEAL EROyi PLATTE CIKCÜIT COTJKT. Tlie state of tlie case from its commencement to the first trial, with the pleadings and judgment, appear in 10 Mo. R. 305, and the directions given on the points then before the Supreme Court, to regulate the future action of the Circuit Court, where it was remanded. After a mis-trial, the jury not agreeing, at the March term, 1849, a trial came on at the September term, 1849, in- which the jury gave a verdict for the appellee for one hundred and fifty dollars in damages. A new trial was asked for, after setting the judgment aside, which was overruled. A motion in arrest of judgment was made by the defendant, and heard and overruled. Exceptions were taken to all these matters, and the defendant appealed to this court. In the trial of the cause the plaintiff gave evidence of an agreement between him and defendant of the 16th of March, 1843, by which Henderson agreed to lease to plaintiff for 99 years the southeast quarter of section 34, township 54, range 34, with the proviso that he could prove up pre-emption on it under the act of 1838 or 1840, without hindering him from proving up under 1841; and if he cannot, he warrants against older claims to it until the government sale of it at public sale. Henderson also covenants to assign to him Barnabas Gabel's lease of the southwest quarter of same section, range and township ; also all his interest (being the north half) of the northwest quarter of section 35 in same township and range, and Henderson was to pay him the rent in wheat he was to get of By waters, and two bee stands ; also 4,950 new rails, and old rails, boards and timbers; also 4,000 shingles, cut of timber furnished bn the place, with present possession of the houses and lots, with small exceptions of houses and spring lot until first of April thereafter. Skinner, as consideration, promises $1,000 on taking possession ; $1,000 on full possession, and $500 on 1st July thereafter ; and $500 for entering the lands, at the time of payment, with a penalty on each of $5,000 for non-performance. By mutual act and consent of both parties, the original of this agreement was taken up from one Bywaters, with whom it had been left and burned, tlie plaintiff alleging that information from the land-office induced him to believe that his title to the land he had gotten of defendant would he endangered if the obligation was left in force. The plaintiff then proved payment on the contract. as follows : 1st. March 31,1843, $1,000; 3nd. April 3nd, 1843, $500 ; 3rd. August 11th, 1843, $600; 4th. September 8th, 1843, $400 ; 5th. June 32nd, 1843 (to'enter land),- $202; 6th. August 5th, 1843,(balance of entry money) $298, amounting in all to $8,000. To the reading of the bond and receipts, objection was made by the defendant, which was overruled and the papers read. It was proved that the sum of $202 was paid in the land-office, for the entry of the quarter iu Gabel’s name, before the destruction of the contract. The defendant proved that a patent from the United States had issued to plaintiff, assignee of defendant, of date 1st of April, 1846, for southeast quarter of section 34, township 54, range 34, of 160 acres. He also proved the execution of a deed of 1st February, 1844, of Barnabas Gabel and wife to plaintiff, for the southwest quarter of section 34, range 34, township 54 of 160 acres. This deed was made after the destruction of the contract. A duplicate receipt was read for the payment for the same land by Gabel, given by; the receiver of public lands. Possession of this land was proven in plaintiff, as also that tract in the patent, before and ever since, after the date of the receiver’s receipt, defendant never having been in possession since the date of the contract. The deed of Gabel was made at defendant’s request, who had long before paid Gabel for the lease of 99 years on it. It was proyen that the plaintiff consulted his counsel in ■ 1843, showing the original contract, who advised him that the contract was not binding on defendant; That defendant declined entering 80 acres under pre-emption laws of 1838 and 1840, under belief that it would endanger the entry of his own pre-emption of land where he lived, under the act of 1841; but upon his proposition to plain- . tiff to pay him $98, the whole sum for entry-money then due upon the contract, he would, risk his own pre-emption and make the entry for Skinner’s benefit of the 80 acres, the north half of the quarter in the contract mentioned. Skinner contended that that sum was only to be paid to make the entry of the Ashworth 80 acres, but in consideration of plaintiff being greatly desirous to secure the lands, which he had much improved, the risk of enforcing his contract, and the inability of the defendant to make good the loss of the money advanced, under the advice of his counsel, he gave the $98 for the defendant’s entry of the quarter. It was made, and the certificate assigned to plaintiff. This the counsel thought was a final settlement of the contract. Afterwards, the same fall, a stranger entered upon the land, and set up claim to contest the legality of the contract and the title acquired under it. By the advice of counsel, the plaintiff and defendant destroyed the contract for the purpose of canceling it. It was proven that Jackson Henderson had a pre-emption claim to the Ash-worth quarter. His claim was to the south half, not the north. He gave up the land to the State commissioner, Leonard, for selection for State purposes, but offered plaintiff to enter the whole quarter, the north half for plaintiff if he would advance him $100 for his entry of the south half. He refused. Afterwards one Jack entered the whole quarter. Plaintiff took wheat on the land ; hauled rails off the north half of the quarter; affirmed they were defendant’s rails; took logs and timber prepared by defendant, and went into the possession of the two quarters immediately after the contract, and has held them ever since. It was proved that Ashworth sold his quarter to defendant. There were rails there to make partition fence. Plaintiff acquired them when Ashworth sold his land to defendant, and he to plaintiff, and they were put up. Possession was given plaintiff under contract with the defendant of the two quarters, and he has held ever since and now resides on it. The court gave, of its own accord, three instructions, to which the defendant excepted and objected. The defendant asked five instructions, all of which were refused except the fourth, and exceptions taken. 1. The plaintiff cannot recover in goneral indebitatus assumpsit ; hence the 1st, 2nd and 3rd of defendant’s instructions ought to have been given. 4 Philips’ Ev. 119, 120. 2. The plaintiff cannot recover. It is a forbidden contract by the pre-emption laws of the United States, and has in whole or in part been executed. 9 Mo. R. 259; 10 Mo; R. 205 ; 15 Wend. 412; 6 Cowen, 431. 3. The money (i, e. the $98) was paid in full . settlement of the contract, voluntarily, with full knowledge of the rights of the parties and of the facts, and cannot be recovered back. 4 Johns. R. 240 ; 2 Richardson’s R. 317; 3 Marsh. 338.