Stachely v. Peirce

Donley, J. —The first error assigned is, that “the court erred in overruling the defendant’s affidavit for a continuance.” On looking to the affidavit, it is seen that the application is made on account of the absence of John Ireland and George Judson. The record shows that Ireland was present during the trial. The affidavit is insufficient to entitle the appellant to a continuance of the cause; it is not stated that it was expected to have the testimony of said witness at the next term of the court, or at' any time. The application is also based on inability to procure copy of judgment of the Confederate States district court. It is stated that affiant was unable to obtain a copy of the record, for the reason that no properly-constituted authority is in possession of the records authorized to give copies. It is not stated that the affiant expected at any time to procure said copy and testimony. The court could know the facts only as stated in the application. If the defendant had no expectation of procuring the testimony, a continuance of the cause could not benefit him, as he would not be in a better condition at the next or some succeeding term of the court. (Hunter v. Waite, 11 Tex., 86.) The second error assigned is, that “the court erred in permitting to be read in evidence the receipt executed by the defendant to Joseph W. Peirce and W. A. Peirce, for the reasons set out in the defendant’s bill of exceptions.” Looking to the bill of exceptions, it will be seen that it was objected to the receipt going in evidence, because said receipt did not show that it was a receipt for the wool sued for, but for a large amount of wool stored jointly by Joseph W. Peirce and W. A. Peirce. It is believed that there was error in overruling the objection of the defendant, and permitting the receipt to [335] be read in evidence to the jury. If the facts warrant, it is competent to explain or contradict a written receipt by parol testimony. (Stratton v. Ruston, 2 Durnf. & East, 369; Stackpole v. Arnold, 11 Mass., 22; Tucker v. Manwell, Id., 145; Johnson v. Johnson, Id., 363; Wurkenshaw v. Scott, 17 Id., 257; Rollins v. Dyer, 4 Shep., 475, 478; Brook et al. v. White, 2 Met., 287; Harden v. Gorden, 2 Mason, 561.) These authorities show, that though receipts are not conclusive, yet the cautious manner in which they are attacked also shows that they are not to be treated as of little importance. (Fuller v. Crittenden, 9 Conn., 405.) And while the receipt is only prima fade correct, it must be held that the facts stated in it are true, until the fact is shown to be otherwise. It was not offered in this case to explain the receipt and show by other evidence that, in fact, the wool was received from the plaintiff, W. A. Peirce, and that to the plaintiff alone the defendant was to account. Without explanation of the receipt, it does not appear that the plaintiff was the sole owner of the wool mentioned in the receipt. It is believed that, in an action to recover property in case of a joint bailment, all the joint owners must join as plaintiffs; and that it is not competent for one or more, or any number less than the whole number interested, to sue. The redress which the law affords, in any given case, belongs exclusively to him or them whose right has been violated or withheld. (Gold, on Plead., 197.) Joint creditors, whether by record, specialty, or simple contract, must all join in an action to recover the debt or the estate which they respectively hold together. (Ib., 199; Stradfield v. Holliday, 3 Durnf. & East, 782.) If the receipt of the defendant read in evidence were sufficient to establish a legal demand against the defendant, and did establish a cause of action, it is a cause of action in [336] favor of Joseph W. Peirce and W. A. Peirce, and does not sustain the alleged cause of action of plaintiff. There was error in overruling the defendant’s objection to the reading in evidence the receipt of the defendant to Joseph W. Peirce and W". A. Peirce, for which the judgment is reversed, and the cause Remanded;