Conran v. Sellew

RichaRdson, Judge,

delivered the opinion of the court.

The twelfth section of the tenth article regulating practice in civil cases (R. C. 1855, p.'1261) provides that “ an issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived, or a reference orderedand the thirteenth section directs that “ every other issue must be tried by the court, which, however, may take the opinion *322 of a jury upon any specific question of fact involved therein by an issue made up therein for that purpose, or may refer it.” These provisions manifestly make a distinction between suits which were formerly recognized as actions at law, and bills in equity ; and the mode of trial in a given case under the present code may generally be determined by ascertaining whether under the old system it would be cognizable at law or in equity. In the former class of actions, whether the case is tried by a jury or submitted to the court, propositions of law must be presented in the form of instructions ; (Von Phul v. City of St. Louis, 9 Mo. 49 ;) but in the latter class, instructions are not required, and perform no function in a case, except to indicate the points of counsel; and in such cases this court will not review instructions given or refused. This cause was properly triable by the court, and the instructions therefore will not be noticed.

There was evidence tending to show that A. & A. Wood & Co. borrowed of the defendant three hundred dollars, for which they executed their note and at the same time left with him as collateral security the note which they held on the plaintiff; that subsequently one of the late firm of A. & A. Wood & Co. paid to the defendant their note for three hundred dollars, and requested that it and also the collateral should be surrendered, which the defendant agreed to do, but did not at the time, for the reason that the collateral was deposited at a banking house, which he promised to send for and deliver up. Under this state of things the defendant had no longer any interest in the note, which had been deposited with him merely to secure the payment of another, but the right to it became reinvested in A. & A. Wood & Co., who could treat it as their own property. They had the right to receive the payment of it, and as soon as the plaintiff paid it he became entitled to the possession of it without any thing more. An assignment of the note was not necessary to give him a right to it after he had paid it. The order on the defendant to deliver the note to the plaintiff was not an assignment, and as either partner after their dissolution had *323 a right to collect the debts due to the firm, either had the right to give the order.

The evidence of A. Wood and Meyers related to facts which occurred after the plaintiff’s note had been assigned to the defendant as collateral security, and there is therefore nothing in the second clause of the sixth section of the act concerning witnesses (R. C. 1855, p. 1577) which rendered either of them incompetent. The other judges concurring, the judgment will be affirmed.