Summary
APPEAL PROM JACKSON CIRCUIT COURT.
This was an action of assumpsit, brought by Thomas Pitcher against J". Brown Hovey to the March term of the Jackson Circuit Court, 1848. The" declaration contained four special counts and a common count for money paid. The first count charges that Pitcher, as sheriff of Jackson county was about to offer a reward of three hundred dollars for the apprehension and delivery of John H. Harper (a prisoner who had escaped from custody), at the jail of Jackson county, and that Hovey agreed with Pitcher that if he would offer a reward of $500, instead of $300, that he, Hovey, would pay Pitcher $200 in case Pitcher by reason of offering the reward should become liable to pay it. That Pitcher accordingly offered the reward of $500, for the apprehension and delivery of said Harper at the jail of Jackson county, by handbills and advertisement in a newspaper. That afterwards said Harper was taken by one Mareellus Duval and by him and his agents brought back to the jail of Jackson-county, and that thereupon Pitcher became liable to pay Duval the $500, and did pay him that sum. Notice of payment is averred, and the count then charges that by reason of the premises the defendant became liable to pay the plaintiff $200, on request, &c. The second count charges the same facts as to the agreement and the offer of the reward and then alleges that Harper was afterwards apprehended by MarcellusDuval and by him and one Nicholas A. Prior broughtback asfar as Springfield, towards thejail of Jackson county, and that the then sheriff of Jackson county there met them and took Harper away from them by virtue of a bench warrant, and conveyed him to the jail-of Jackson county, &c., and this count then alleges that by reason of the premises, Pitcher became liable to pay $500, to Duval and Prior, and did pay it, and that Hovey, thereupon, became liable to pay Pitcher the $200, on request, &o. The third count charges the same facts as the second with this exception, that it sets up a contract as of a reward for the apprehension alone, and not the apprehension and delivery of Harper at thejail of Jackson county, and adverse payment by Pitcher to Duval and Prior at Springfield. The fourth count proceeds like the third, as of a reward for the apprehension alone, and averse that plaintiff paid $400, to Duval and Prior at Springfield, Which they received in full satisfaction of the $500, and then avers defendant’s liability to pay two-fifths of the $400, on request, &c. All the special counts charge the fact that Harper, previous to his escape, had been committed to the jail, by justices, on a charge of murder, and none of them allege a promise by the defendant, upon or after the allegation of his liability to pay, &c. To this declaration the defendant plead the general issue prescribed by the acts -of 1847.
At the September term, 1849, the defendant moved the court to strike out the special countsfor want of sufficient averment of notice, and because said counts did not aver a promise by defendant to pay, upon or after the allegation of defendant’s liability. This motion was overruled by the court below and defendant excepted. This cause then came to trial by a jury, and the following testimony was introduced. John Heard, a witness for the plaintiff^ stated that about the 1st day of August, A. D. 1846, lie was called upon by the plaintiff to write a notice describing the person of John H, Harper, and offering a reward for his arrest and delivery at the jail of Jackson county; that he consented to do so, but that about the time he commenced writing, the defendant came in and inquired what reward was to be offered. That be told defendant that plaintiff would offer three hundred dollars. ■ Defendant said that three hundred dollars was top little, and spoke of some authority that the friends of W. W. Meredith had given him touching the case of Harper; and thinks that defendant also said that they would be willing to contribute if plaintiff would bid a larger amount. Witness told defendant that it would be unsafe for plaintiff to rely upon the friends of W. W. Meredith to pay the reward or any part of it, and suggested that he, defendant, could bid as much as he thought proper himself, for Mere-dithls friends. Defendant said that the fact that plaintiff was sheriff, would give weight to the bid, and make the arrest of Harper more probable; witness told defendant that he could not advise plaintiff to bid more, relying upon the friends of Meredith to pay it. Defendant then said that he would, if plaintiff would bid five hundred dollars reward, undertake, if the reward ever had to be paid, to pay two hundred dollars of it himself, and at the same time witness thinks he said that they, Meredith’s friends, would not let him pay it, or some words to that effect. Witness then asked plaintiff if he was willing to take’ defendant for the two hundred dollars and offer $500 instead of $300. Plaintiff said he was willing, and the notice was filled with five hundred dollars. Witness stated that the following copy was the notice published by handbills and in the “Western Expositor,” a newspaper published in Independence :
“$500 Rewaed! — Stop tiie Mubdebeb!
Escaped from the jail of Jackson county, Mo., on the night of the 30th July, 1846, John H. Harper, who had been committed on a charge of murdering Wm. W. Meredith. Mr. Harper is about 24 years old, 5 feet 6 or 1 inches high, well made, brown hair and a heavy beard, blue eyes, a florid complexion, a plump round face, pleasing address, and very genteel appearance. He is a fine scholar and a lawyer by profession. The above reward will be paid for the apprehension and delivery of said Harper at the jail of Jackson county aforesaid. TnoMAS Pitchee, Sheriff of Jackson County,
Independence, August 1st, 1846.”
Witness believes that plaintiff was present all the time when the conversation above related took place between himself and defendant — knows he was present when defendant offered to pay $200, as above stated. This conversation took place in the witness’ office in Independence, Mo. Plaintiff at first requested witness to put $300 into the notice as a reward, but after that conversation he told witness to make the reward $500. On cross-examination he stated that he thinks plaintiff was present at the entire conversation; that considerable altercation took place between plaintiff and defendant, the words of which witness does not recollect, but thinks he has stated the substance of all that took place between the parties; that defendant assisted in describing the person of Harper and in writing the notice, but witness does not remember that defendant suggested the last clause in the notice. Thinks Hovey said that if the reward had to be paid, he would pay $200 of it, but does not recollect any special promise to pay it to Pitcher or any other particular person. He further stated that he knew that Hovey (defendant) prosecuted Harper before the committing justices, but did not know of his own knowledge who employed him to do so ; that at the time of writing the notice, Hovey stated that he was authorized by the father of Meredith to take any steps that. he thought necessary to bring Harper to justice. Witness considered Hovey the attorney of the friends of Meredith.
Defendant put the following question to witness: “Did you not, on a former trial of this cause, before the Circuit Court, in answer to a direct ques- „ tion propounded to you upon that point, by the judge, say, that Hovey’s undertaking was to pay so much of the reward to the person who should apprehend and deliver Harper at the jail of Jackson county ?” To this question the witness answered : “I never stated that Hovey promised to pay the person delivering Harper at the jail. I may have said that my understanding was that Hovey was to pay two hundred dollars, of the five hundred bid, when Harper should be delivered at the jail.”
Benjamin E. Thomson, a witness for the plaintiff, stated that in the latter part Of September, 1846, at the town of Springfield in this State, he saw plaintiff pay to one Prior $400 for the arrest of John H. Harper. Prior claimed $450 at first, which plaintiff refused to pay, because plaintiff said it was worth more than fifty dollars to bring Harper to Independence; that plaintiff, on the same evening authorized witness to say to Prior that he would give him $400, and on being informed of this, Prior said he would take it, and the $400 was paid by plaintiff to Prior; that some four days previous to this payment information was received by a letter from Prior to plaintiff that John H. Harper had been arrested and was in the town of Springfield in this State, ' detained by Duval and Prior. On reception of this information witness went-to the town of Springfield, and took with him a bench warrant and a capias for the arrest of said Harper; the capias was directed to the sheriff of Greene county. He further stated that after he arrived at Springfield he took Harper by virtue of the bench warrant and brought him back, and put him in the county jail of Jackson county ; that he did not arrest Harper nor take him In custody by virtue of the bench warrant until after plaintiff and Prior had settled up on'the amount of money to be paid for the arrest 'of Harper, and until after the money was paid, and that no use was made of the capias at all ; that the bench warrant was issued by the Jackson Circuit Court while in session at the September term, 1846. He further stated that the plaintiff and several others went with him to Springfield at the time spoken of above, but that he does not know whether the defendant knew that plaintiff was going or not; tthat he and some others were in conversation with plaintiff near the court yard gate before they started from Independence to Springfield, talking over the az’rest, &c., when defendant came up to the crowd and said to plaintiff, •“Tom, you shan’t lose,” or “you shan’t pay a dollar of the reward.” Witness ■did not recollect which word w'as used, “lose” or “pay.” On cross-examination witness stated that the $400 paid by plaintiff was paid for arresting and bringing Harper to Springfield ; that Springfield is from 160 to 200 miles distant from Independence ; that he made no chai’ge for going to Springfield, but made a statement of going after'Harper to the County Court of Jackson county, and they made an order allowing to each man who went with him the sum of nine dollars. The warrant for the money was issued in witness’ name, and he paid plaintiff his share, which he thinks was nine dollars.
Henry W. Young, a witness for the plaintiff, stated that he was one of the men who went with sheriff Thomson to Springfield after Harper; that they found Harper at the latter place in the custody of one Prior, a deputy sheriff of Van Burén, Arkansas, and an Indian agent, whose name he thinks was Duval; that plaintiff, Pitcher, negotiated with the parties who had Harper in custody, by which he was to pay them four hundred dollars; that he did not see any money paid, but that Prior and the Indian agent left in the stage before daylight next morning, and he knows that they had been satisfied by Pitcher; that Thomson took possession of Harper as soon as Pitcher had settled with the parties, and Harper was next morning taken by us and brought back to Independence and placed in the jail of Jackson county. We got to Springfield in the evening, and left for home next morning.
Plaizztiff then read in evidence a transcript of a judgment of tw'o justices of the peace, committing John H. Harper to the jail, to answer to the charge of murdering William Wirt Meredith.
John Kelly, a witness for the plaintiff, stated that he was jailor under plain-tiff, Pitcher, when Harper was put in jail, and that Harper remained in the jail of Jackson county as long as he remained jailor. That about the latter part of July, 1846, he saw a hole in the wall of the jail, and Harper was gone from the jail, at which time the witness was not jailor.
Thomas J. Shaw, a witness for the defendant, stated that he was one of the jury which tried this cause before, when a non-suit was taken ; that John Heard was then, as now, a witness for the plaintiff, and that his best impi’ession is, that in answer to a question asked him on that point, said’ John Heard said that the promise of Hovey, the defendant, was to pay two hundred dollars of the reward to the person who should apprehend and deliver Hai-per at the jail of Jackson county. Witness was not certain as to the precise words used by Mr. Heard, but was led forcibly to that impression from the fact that upon Heard’s answer to that question, the plaintiff took a non-suit.
Newton J. Hockensmith, a witness for the defense, testified that immediately before the first suit between the parties, about this same matter, he went with plaintiff to the office of defendant, and after the usual salutations, plaintiff said to defendant that lie had come “to see about that $200.” Defendant seemed surprised, and asked, “what $200 ?” Plaintiff replied, “Heard says you promised, as the attorney or ageut of Meredith, that you would pay $200 of the reward, in case I had to pay it.” Defendant denied it; and said that he had never promised to pay plaintiff a cent; and then rehearsed what had taken place between himself and Heard. Defendant stated to plaintiff that on the morning after Harper escaped, Heard was about to offer a reward of $300 for' the apprehension and delivery of Harper, in the name of plaintiff, in order to save 'plaintiff’s election, which was about to come off, supposing that plaintiff was in Snybar township electioneering, and would not be in, in time to offer it himself; and that he, defendant, told Heard that $300 was not enough, and tliat lie was authorized by Meredith, the father of the deceased, to do anything that might be necessary for the safe-keeping or re-arrest of Harper, in ease of escape, and that if Heard would offer $500, that he, defendant, would agree, as the attorney of Meredith, to pay $200 of it, in case plaintiff did not.stand up to it, when he came in, and that while they were talking of it, plaintiff came in himself, and offered the reward himself, only requesting of Heard and defendant, that they would draw up the notice, as they could better describe Harper than he could. When defendant made this statement, plaintiff replied, “Heard says you did !” and seemed still to refer to Heard. Defendant then said to plaintiff: “If you had anything against me, in any way, why have you let three or six months pass without naming it to -me ?” Plaintiff replied that he was waiting to see if the people would not make the reward up to him by subscription. ' Defendant then asked plaintiff if he had not had frequent conversations with him about the reward, and about getting the people to make it up to him, since the payment of the monej' at Springfield, and whether, plaintiff, during all that time”, had ever named such a thing as a liability on defendant’s part ? Plaintiff acknowledged that he had had such frequent conversations, and that he had never before named defendant’s liability, &c., and gave as his reason, that he was waiting to see if the people would not make up the reward to him. Defendant then asked plaintiff if he had not had in liis possession an amount of money (the amount not recollected by the witness) belonging to defendant, since Harper’s re-arrest and delivery at the jail, and whether he had not paid that money over to him, defendant, without naming any liability on defendant’s part to him ? Plaintiff replied that he had, but still referred to Heard. Defendant then said to plaintiff, “Did I ever promise to pay you a cent in my life ?” Plaintiff seemed to avoid answering this question, but still referred to Heard. Defendant then proposed to go and see Heard before bringing the suit, to which plaintiff agreed ; but plaintiff did not wait to go and see Heard, but brought the suit immediately, contrary to his agreement with defendant. Witness further stated, that it was generally understood in the community that defendant was the attorney of young Meredith’s friends. It was also generally understood that Meredith, the father of the deceased, was a man of wealth, and that defendant, at the time, had no visible property out of which money could. be made. On cross-examination, he stated that the plaintiff did not at any time during the conversation, say that Hovey had not made the promise to him. That he had known John Heard, the witness, several years, and that his char» acter for truth and veracity was above suspicion.
The plaintiff proved by several witnesses that the charater of John Heard for truth and veracity, was good, and on cross-examination, Mr. Palmer, one of his witnesses, stated that Heard had been a partner of his in the practice of law, for two years past, and that Heard’s recollection of facts and circumstances was not good.
Robert G. Smart, a witness for the plaintiff, further stated that soon after Harper had been re-arrested and delivered at the jail of Jackson county, plaintiff and defendant came up to him on the street, and defendant he thinks asked, his opinion about getting up a subscription to make up the reward to plaintiff) witness said to them that there had been a deal of excitement about Harper’s escape, and that they had better get up the thing quietly. Defendant then said he would give ten or twenty dollars towards it, and after sqme further conversation, plaintiff remarked, “I don’t care how it is done, I want my money from somebody.”
Upon this testimony, the plaintiff asked the following instructions : . 1st. That if the jury belive from the evidence that defendant promised plaintiff, if he, plaintiff, Would offer a reward of $500, instead of $300, for the apprehen.sion of said Harper, that he would pay plaintiff $200 of the reward, if lie, said plaintiff, should have the said reward to pay ; and that said plaintiff did offer the reward of $500, for the apprehension and delivery of said Harper, at the jail of Jackson county, and that said Harper was apprehended in consequence of offering said reward; and was on the way to the jail of Jackson county, in custody of the persons who had apprehended him : and was met by the then sheriff of Jackson county before he got to said jail, and said Harper was taken out of the custody of the person? who had apprehended him, by said sheriff, and conveyed to said jail; and that the persons who apprehended Harper, agreed with the plaintiff to take less than the reward offered ; and that said plaintiff paid said persons who had apprehended Harper, $400, according to said agreement ; then said defendant is liable to said plaintiff for four-fifths of said $200, and the jury will find for the plaintiff accordingly. 2nd. That although the jury may believe from the evidence that said defendant declared at the time the said reward was offered, that he was the agent of Mr. Meredith, the father of the deceased, and that as such agent he was authorized to offer a reward, or take any other steps necessary to arrest said Harper, yet the jury must not, from the said declarations of said defendant alone, unsupported by other evidence of the fact, find that said Hovey was the agent of Meredith, and unless they believe from other evidence that the said declaration of said Hovey that he offered the reward as such agent, they must find for the plaintiff. Defendant objected to these instructions. The court below gave them to the jury, and defendant excepted.
Defendant then asked the following instructions: 1st. That if the jury believe from the evidence that defendant promised to plaintiff, if plaintiff would offer $500 for the arrest and delivery of Harper, at the jail of Jackson county, Missouri, and plaintiff should afterwards become liable to pay such sum in consequence of such offer, he, the defendant, would pay to plaintiff $200 of that sum. Y et if they believe from the evidence that plaintiff paid said sum, or any part of said sum, for the apprehension and delivery of said Harper, at another place than the jail of said county, they must find for the defendant. 2nd. That if they believe from the evidence that Hovey contracted with Pitcher as the agent of Meredith, and disclosed his principal at the time, of making his contract, they must find for the defendant. 3rd. That proof of the payment to Prior does not support the allegation of payment to Duval. 4th. That proof of payment of $400 to Prior, does not support the allegation of payment to Duval and Prior. 5th. That if the jury believe from the evidence that defendant agreed to pay $200 of the reward offered by plaintiff for the apprehension and delivery of Harper at the jail of Jackson county, and that Duval and Prior, having apprehended said Harper, were by said plantiff released and discharged from delivering said Harper at the Jackson county jail in con-sid'eration of a different sum than the one offered, whether more or less than that sum, then and in such case Hovey is not liable, unless he consented to the alteration thus made by said Pitcher, Duval and Prior. 6th. That if the jury believe from the evidence that plaintiff paid money for the apprehension and delivery of J. H. Harper, before he was delivered at the jail of Jackson county, then he paid the same of his own wrong, and cannot recover of the defendant therefor, unless they also believe from the evidence that the defendant instructed him so to do, or consented thereto. 7th. That if they believe from the evidence that the plaintiff at the time of offering the reward, knew nothing of the alleged promise of defendant they will find for the defendant. 8th. That, though they should believe from the evidence that defendant made the promise to pay $200 of the reward in case plaintiff became liable to pay the $500, so offered as a reward, yet, if they believe from the evidence that the plaintiff has paid no money by reason of offering the reward, except the $400, which is stated he paid at Springfield, before Harper was delivered at .the jail of Jackson county, they must find for the defendant. 9th. That unless they believe from the evidence that defendant requested pjaiutiff to pay for him, his, defendant’s, alleged portion of the reward, at Springfield, before Harper should be delivered at the jail of Jackson county, they must find for the defendant generally. 10th. That if they believe from the evidence that defendant’s alleged promise, was to pay so much of the, reward to the person who should apprehend and deliver Harper at the jail of Jackson county, and not to plaintiff, they will find for the defendant. 11th. That there is nq, evidence before the jury that defendant requested plaintiff to pay any money for him at Springfield, or before Harper should be delivered at the jail of Jackson county. The court below refused to gíve 1st, 4th, 5th, 6th, 8th, 9th,. 10th and 11th instructions asked by defendant, and he excepted.
• There was a verdict for the plaintiff for $160, and defendant moved to set-it aside and to grant him a new trial, because the jury *ound contrary to the-law and the evidence, and without sufficient evidence, and for the.cause saved in the bill of exceptions. This motion was overruled by the court below, and defendant excepted. There was a judgment upon the finding, and defendant moved in arrest, because of the insufficiency of the declaration, and because the court refused to strike out the special counts. This motion was also overruled by the court below, and defendant excepted, and this cause is brought here by appeal.
1st. That the spécial counts in the declaration do not charge that defendant promised. See Chitty’s PI. 309 ; 6 Mo. R. Muldrow v. Tappan, 276. 2nd. That tho court erred in giving the instructions asked by the plaintiff, in this : First. That the first instruction proceeds as if the evidence was of a reward for the apprehension alone, when the evidence is of a reward for the apprehension and delivery, &c. 3 Mo. R- 286. Second. That it assumes the fact that Thomson was sheriff, and there is no evidence of the fact. 4 Mo. R. 106. Third. That it assumes the fact that Thomson was clothed with authority to take Harper from Prior at Springfield, when that fact should have- been left for the jury to find. 8 Mo. R. 224. Fourth. That the doctrine inculcated by the first instruction, is not the law arising upon the facts in this case. See Chitty on Contracts, p. 499, 529 ; 5 U. S.-Cond. R. 727 ; 2 Starkie, 46 and following; Smith’s Leading Cases, note on p. 70, a 2. Fifth. The second instruction takes the whole matter of contract from the jury, and precludes them from considering to whom the credit was given in the original contract. 3rd. That the court below ought to have given to the jury the instructions asked by defendant, which were not given. First. That they ought to have given the 1st, 5th, 6th and 8th instructions asked by defendant. See authorities cited against 1st instructions given for plaintiff. Second. That they ought to have given the 4th instruction asked by defendant. See 2 Starkie, 46, and cases there cited in note. Third. That they ought to have given the 9th instructions asked by defendant, because none of the special counts are supported by the testimony, and the plaintiff could not recover on the common count without proof of a request, unconnected-with the specialty. See record. See' also 2 Starkie on Bv. 53. Fourth. That they ought to have given the 10th instruction asked bj^ defendant. See the evidence, and also see 2 Starkie, p. 46, and case there cited in the note. Fifth. That they ought to have given the 11th instruction asked by defendant. See the testimony, and also 11 Mo. R. 115, Lee at al. v. David. 4th. The evidence does not support any of the special counts in the declaration. First. The first count alleges payment to Duval. The proof is payment to Prior. Second. The second count alleges payment to Duval and Prior. The proof is payment to Prior. It alleges'that Thomson was sheriff. There is no proof of that fact. It alleges that Thomson took Harper, l}y virtue of a bench warrant, out of the custody of Prior and Duval. Parol evidence is incompetent to prove a record, and the proof is, that Thomson did not take Harper out of their custody by law or trespass. Third. The third and fourth counts allege the offering of the reward for the “apprehension” alone. The proof is of a reward for the apprehension and delivery. Also the same variance attaches as to the second count. 5th. The plaintiff could not recover upon his common count for money paid to defendant’s use. See 2 Starkie on Ev. 55-6 ; Robertson v. Lynch, 18 Johns. R. 456; Spratt v. McKinneys, 1 Bibb’s R. 595 ; 8 Mo. R. 517. 6th. That the plaintiff was not liable to pay the $400 by reason of offering the reward, and cannot recover of the defendant for any part of said term. 7th. That the jury ought to have found for the defendant.
1. The court did not err in overruling the motion to strike out the four special counts. The defendant moved the court to strike out those counts, upon the ground that they -were substantially defective. If they were defective, he could only avail himself of the defect by demurrer or motion in arrest of judgment. Bury v. St. Louis, 12 Mo. R. 298 ; Mullen v. Pryor, 12 Mo. R. 307. But the record shows that the defendant did demur to the plaintiff’s declaration, and being unwilling to abide by the judgment on the demurrer, withdrew it and filed the general issue ; thereby abandoning the alleged defects in the declaration. Besides, counts will only be stricken out when they appear upon the face of the declaration to be superfluous, not defective. 1 Tidd’s Pr. 607, and the motion is one directed to the discretion of the court.
2. The court did not err in overruling tlie motion in arrest of judgment. The grounds of the motion in arrest were, first, that the declaration was defective, and second, that the court overruled his motion to strike out the counts. This last was no ground, under any circumstances, for arresting a judgment; and as to the ground that the declaration was defective, the court did not err. First, Because the defendant having demurred to the declaration, and being unwilling to abide by a judgment on the demurrer, withdrew it and filed the general issue. He thereby abandoned any defects in the declaration, and could not subsequently avail himself thereof by motion in arrest of judgment. Second, Because the declaration containing five counts, four special and one common count, and the common count being good, and entire damages being given, the good common count will sustain the verdict and judgment thereon. Rev. Code, 1845, p. 831, § 7.
3. The court did not err in overruling the motion for a new trial.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
