Finney v. Brant , 19 Mo. 42 ( 1853 )

Ryland, Judge,

delivered the opinion of the court.

1. The appellant contends, that the court below erred in refusing to continue the case, and in ordering the same to be tried at the first term. This was a suit in the Court of Common Pleas. When the Court of Common Pleas was first established, the 9th section of the act declared “that all cases originating in said Court of Common Pleas, when the process shall have been personally served on the defendant fifteen days before the eommencoment of the term, &c., shall be heard at the first term, unless good cause for a continuance be shown.” Acts of 1»40-41, p. 51. “ The practice, process and proceedings of the court shall be the same, in all respects, as is or may be provided by law for the Circuit Court, except as herein otherwise specially provided.” Sec. 8 same act. In the Revised Code of 1845, the time, instead of being fifteen days service before next term, is increased to twenty days service, and this is the only difference between the 9th section of the act of 1840 and ’41, creating the court, and the 9th section of the revised act of 1844 — 45, chap. 42, tit. Common Pleas Court of St. Louis county. The 8th section of the act of 1844 — 45 is the same as the act of 1840-41. Now the special provision mentioned in these two sections, in regard to the practice, process and proceedings, takes the service of process from without the operation of the general law, when the suit is brought in the Common Pleas Court, and we must look to the time of service mentioned in the act concerning the Common Pleas. If, then, the service has been twenty days before the term, the first term is the trial term. We consider the practice act of 1849 does not repeal the provisions of the acts concerning service, in the cases originating in the Common Pleas, and that the refusal of the court to continue this case is no error.

2. The second point relied upon by the plaintiff to reverse the judgment below is, that the plaintiff could not sue separately for money which he paid for defendant. It appears that some twenty-five persons, dreading the claim or claims of others, under one Jacques Glamorgan, to part of the tract of land of one by forty arpens granted to Gabriel Dodier, determined to make common defence against all suits, motions and proceedings in law or equity against them or any one of them, for any portion of said tract of one by forty arpens ; that among this number was the defendant, Brant; that by agreement, these persons appointed agents to manage the matters of defence, to employ counsel to conduct all matters and things whatever, pertaining to a proper defence against all such suits, now depending or instituted, as well as all such as may be instituted or commenced against any of the persons signing said agreement, at any time within ten years from the date of said agreement. The agreement is as follows :

“ These presents witness, that the undersigned do hereby constitute and appoint John O’Fallon, Joshua B. Brant, Jesse G. Lindel!, John Finney, and Isaac Walker, their lawful agents and attorneys in fact, to direct, manage and conduct all matters and things whatsoever, pertaining to a proper and lawful defence against all suits, actions, motions or other proceedings in law or equity, now pending or instituted, as well as all which may be instituted, made or commenced against any one of the undersigned, at any time within ten years from the date hereof, by any person or persons whomsoever, claiming under .Jacques Glamorgan, deceased, for the whole or any portion of •the tract of one by forty arpens of ground granted to Gabriel Dodier, and being the second arpent north of and parallel to (the king’s road, or St. Charles street, with full power to contract with and employ such counsel as they may deem fit, and do and perform all other things in the premises, which, at their discretion, they may think needful and necessary to be performed; and that they, have full power to substitute, from time to time, some one or more of the undersigned to fill any vacancy which may happen in the number of said agents or attorneys, from death or otherwise ; that' the undersigned do hereby severally covenant, to and with said agents or attorneys, and their' successors, that each will pay to said agents, from time to time, such calls, amounts or- sums of money as they may make or assess against us respectively, to defray the expense of conducting said defence or other proceeding, to secure the undersigned against said Clamorgan claim; every such levy or assessment shall be upon each in proportion to the interest he holds-in said tract of land. The county assessment, for the time being, shall be the rule of value upon which the assessment shall be made.

“ These presents further witness, that, whereas, John O’Fallon and Jesse G. Lindell, in 1826, purchased said tract of land at sheriff’s sale, made in'virtue of a judgment and execution against Jacques Glamorgan’s executors, which purchase, if sustained in law, will be good against all persons claiming under Clamorgan. Now the said O’Fallon and Lindell, parties hereto, not desiring to avail themselves of said purchase, beyond their interest to property within said tract, otherwise acquired, and that they hereby agree to and with each of the undersigned, who bona fide claim any part of said tract, that on the payment' by them, to said O’Fallon and Lindell, of all money, with interest, by them expended in the premises, and pay all costs and fees whatever, accruing or to accrue in sustaining or attempting to sustain said purchase, they will give to each of the undersigned the benefit of said purchase, to the extent of his interest as aforesaid.

“ Witness our hands, at the city of St. Louis, this 28th day of August, 1845. “Peter Lindell,

“J. B. Brant,” &c.

The agents appointed had full power to contract with and employ counsel to conduct the defence. These persons signing said agreement were to pay to their agents and successors/ from time to time, such cálls, amounts and sums of money as they, the agents, may make or assess against them respectively. Every such levy or assessment shall be upon each in proportion to the interest he holds in said tract of land; the county assessment, for the time being, shall be the rule of value upon which the assessment shall be made. The agents were John O’Fallon, Joshua B. Brant, Jesse G. Lindell, John Finney and Isaac Walker. O’Eallon and Brant refused to serve, and the others named, in pursuance of the power given to them, filled the vacancy, by appointing Solomon H. Robbins and Peter Lindell.

These agents then employed counsel to defend the suits which had been brought by one Fidelio Sharp and others in the Circuit Court of the United States for Missouri; also to defend suit instituted in the Common Pleas Court. They agreed to pay the counsel, that is Gamble & Bates, two thousand dollars — one thousand in six months, and the balance upon the determination of any one of said suits upon the merits, either in the Circuit Court of the United States for the Missouri district, or in the Supreme Court of Missouri. They employed Spalding & Tiffany upon the same terms as Gamble & Bates, Geyer & Dayton upon the same terms, and Judge Lawless upon the same terms. The suits were finally settled by a decision of the Supreme Court of the United States, in which the persons making the agreement succeeded in defeating the Clamorgan claim, and the defendant in this suit was quieted in his possession, and became, by the judgment of said .court, legally entitled to a large amount of property.

•In order to pay the fees of the counsel employed, the agreement had settled upon a principle of assessment. The owners of the interests adverse to Clamorgan, had agreed that the agents shall m rice the assessment according to the rights and interests of each in the tract, and this assessment shall be according to the value, to be ascertained by the county assessment for the time being. The agents employed Mr. Bhepley to examine the county assessment and get the basis upon which they might make the proportionate assessment, and then make the calls upon each for his contribution.

This was done and the assessment made. Calls were accordingly adjusted to the interest of each respectively in the land. These agents then drew on the defendant, Brant, for his share of the money, and he refused to pay, alleging an improper assessment. These agents then, not as partners, but as persons who had employed counsel to defend the law suits of the defendant, became personally liable to the attorneys and counsel employed, and each separately paid a portion of the money which the defendant, Brant, should have paid. Brant was one of those who had authorized these persons to employ counsel to defe.nd his suit; the counsel defended Brant’s suit successfully. Brant refused to pay the calls made upon him by these agents, and these agents had each to pay separately for him a large amount of money, at different times, to the different lawyers and counsel. They united in bringing suit to recover the money from Brant, and it was held by this court that these persons were not partners, and that they did not jointly pay out the money for Brant, hut each paid separately his proportion of the amount from his own means, which Brant ought to have paid, and each had his separate cause of action against Brant.

This first decision ruling against the joint action was made upon the point specially relied on by Brant’s counsel at that time. Now the objection is seriously made against the separate action of those who have each paid out his own money to defend Brant’s law suit — paid out money not from a joint fund, but from their own purses, in different portions, at different times. This point is ruled against the defendant.

3. The defendant’s third point is the statute of limitations. It also will prove unavailing. The money paid for him was paid partly in 1846, more than five years before the commencement'of this suit, but it was on a contract with counsel requiring a part in six months and a part when the suits were finally disposed of on the merits. A part of the money was paid in 1852, and some in January, 1858. These payments are considered as a running account, and the last item brings down the whole within the statutory time.

4. The objection, that the firm of John and William Finney paid the money for Brant and not John Finney, and that the firm of John and William Finney ought to sue, and not John, is also untenable. John Finney was bound ; was liable to pay the fees, which, as one o£ the agents, he had agreed to pay counsel for Brant and others. Now this liability of John was discharged by the payment for John, by the hands of John and William Finney, but we cannot say that it was not with John’s money. There is no proof that the payment was with the partnership funds ; it was obviously made for him, for he was responsible and not his firm. To say that the payment of this individual liability by the firm was not such a payment as could authorize the individual to sue, would be exceedingly refined and technical, and in this case, this court cannot be expected to search out for technical objections against a judgment apparently for the right party.

The judgment below is affirmed,

Judge Scott concurring.