Wells v. Gaty , 8 Mo. 681 ( 1844 )

Tompkins, J.,

delivered the opinion of the Court.

This was an action of assumpsit, brought by Welles against Gaty, McCune & Glasby, on the common counts. The pleas were non-assumpsit, payment and set-off, with other special pleas not material to be noticed. The case was tried before a j.ury at the February term in the year 1844; judgment was given for the defendants, and, to reverse it, Welles prosecutes this writ of error.

The bill of exceptions shows that the plaintiff gave in evidence an instrument of writing to the following effect: “ This article of agreement, made and concluded, at the city of St. Louis, the 4th day of February, in the year 1842, by and between Samuel Gaty, John S. McCune and Alban Glasby, of the first part; and William Thomas, Robert Walsh, John Daggett and John D. Coalter, doing business under the name of “ The Dry-Dock Company,” of the second part; and George Welles and Alphonso Wetmore, of the third part, witnesseth: that the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, do covenant and agree to and with the said’ party of the third part to furnish an engine of the following dimensions, &c. The said party of the second part, for and in consideration of the covenants hereinafter mentioned, do covenant and agree, to and with the said party of the third part, to build and furnish a twin ferry-boat, 90 feet long on deck, 13 feet beam, &c. And the said first and second parties do jointly agree with the said third party, that they will furnish said ferry-boat and engine complete, &c., by or during the month of May next. In consideration of which, the said party of the third part do covenant and agree to and with the party of the first part, to pay them thirty-two hundred dollars, as follows, viz.: lour hundred and twenty-seven dollars, on signing this contract; four hundred and twenty-seven dollars on the first day of March next; eight hundred and fifty-three dollars on the first day of May next, or on delivery; and fourteen hundred and ninety-three dollars in four months after, &c. And the said party of the third part do covenant and agree, with the said party of the second part, to pay four thousand three hundred dollars, as follows, viz.: five hundred' and seventy-three on the signing of this contract, five hundred and seventy-three on the first of March next, &c.

Evidence was introduced to prove the execution of the contract, and to show that the first payment was made by Wetmore out of money furnished him by Welles; and that Welles also paid the second instalment to the defendants; and that Wetmore had an interest in the boat, and was (o advance no money, but to render services to Welles, in consideration that Welles advanced money. Other testimony was given, which it is not material here to notice. '

After the testimony was all detailed in the bill of exceptions, it is added, “And thereupon the court directed a nonsuit to be entered in the case, upon the ground that the said Wetmore had not been joined as a party in the suit. Exceptions were taken to this decision of the court. The plaintiff moved to set aside the judgment of nonsuit; the motion being overruled, the plaintiff excepted to that decision also.

Where a plaintiff is demanded, and doth not appear, he is said to be nonsuit; and this usually happens where, upon the trial, and before his cause is finally submitted to the jury, the plaintiff discovers some error or defects in the proceedings, or is unable to prove a material point for want of necessary witnesses, &c., and thereupon being demanded, (as he must be) his default is recorded, &c. —5 Bacon, 140, title, “Nonsuit,” letter A.

The court cannot compel a plaintiff to submit to a nonsuit; they may advise it, and direct him to be called, but if he refuse to suffer a nonsuit, the court can no otherwise protest and enforce their opinion but by awarding a new trial, if the jury find against their direction. — 1 Washington, Ross vs. Gill; Id., 138; Thornton vs. Jett, 2 Bin., 234; Gerard vs. Gettig, Id., 248; Widdefield vs. Widdefield, cited in Bacon, at the aforesaid title, in a note.

Again, the plaintiff, in no case, is compellable to be nonsuited; and therefore, if he insist upon the matter being, left to the jury, they must give in their verdict. (Tidd’s Practice, 796.) The authorities cited, 3 Term Rep., 662; 1 Burrow, 338 ; Cowper, 483, and 2 Term Rep., 281.

The 31st section of our act to regulate practice in the Supreme Court directs, that no exception shall be taken in an appeal or writ of error, to any proceedings in the Circuit Court, except such as shall have been expressly decided by such court. No point of law has been decided in this case; but the judge of the court orders a nonsuit to be entered against the plaintiff, assuming, as we must suppose, the office of a jury as well as of a judge, whose duty it is only to expound the law arising on such facts as the jury may find from the evidence given in the cause. It might have been true, that if the law arising on the evidence given in the cause had been explained to the jury, they would have found for the defendants ; but it was the part of the court to expound the law to the jury, and to have left them to say whether, on the evidence given in the cause, and the law as delivered to them by the court, the plaintiff could recover.

It was said in the argument, that the plaintiff took a nonsuit on account of the opinion of the court that Welles could not sue alone, but should have joined Wetmore as co-plaintiff. It appears on record, that the plaintiff came into court and said, he would not further prosecute his suit, but suffered the same to be discontinued; but it appearing, also, from the bill of exceptions, that the court ordered a nonsuit to be entered against him, and that he excepted to the action of the court in that matter, the entry that he suffered his suit to be discontinued must be regarded as compulsory, and made under the influence and in consequence of that order of the court. It is much easier to the court to direct a non-suit to be entered against a plaintiff, than to explain the law to the jury, so as to enable them to find, under the directions of the court, whether, according to the evidence given, the plaintiff or the defendant ought to prevail. But the practice of directing the entry of a nonsuit, in cases like the present, leaves the law of the case all open for this Court to decide, and renders it impossible to comply with the requisitions of the 31st section, above cited.

The judgment of the court is reversed, and the cause remanded.