Sublett v. Noland

Napton, Judge, delivered, the opinion of- the court. Noland sued Sublett & Vasquies before a justice of the peace, for certain services performed by him in hauling furs, &c., from Independence to Piatte river, and filed with the justice a hill of the items of. his account. He also filed a paper, purporting to- be the agreement made by himself and several others who were- employed by defendants in the same business, the substance of which is, that Sublett & Yasquies agreed to pay each of the wagoners, including Noland, a certain price per day for hauling, specifying the amount each wagon was tsb [517] contain and the pi ice per hundred weight. This agreement.was signed by all the parties above named,and was the contract on which the plaintiff founded his bill of items. Noland obtained judgment before the justice, and the -defendants appealed. On the trial in the cir•cuit court, it appeared in evidence, that the-paper purporting to be the agreement on which the account of Noland was founded, was only a copy of the original agreement, and that the original itself had not been filed with the justice at the time the summons issued. It was also proved that the copy was a correot one; that the original was in evidence before the jury on the trial before the justice, and brought there by a subpoena duces tecum; that after the trial before the -justice, the attorney of defendants had ¡gotten possession of it. The-plaintiff served a notice on said attorney in court to produce this original agreement, which the attorney declined doing. "Thereupon plaintiff offered the copy alluded to above in evidence, and the court-permitted it-to be read. A. and B. entered articles of n-I'EmáVTbí which the latter agree.t0 wygen ofpulatedprice, and °” the delivery oi fatreT^ereto be paid the-amonnt “dae 1° each in ^amount by 1 each respectively hauled.” Held, to not\^<rin7con-tract/ There was much evidence in relation to the -performance of the services under the contract, and in relation to some offsets claimed by the defendants; but as the counsel have abandoned all the -points which would apply to the sufficiency of the testimony, it is deemed unnecessary to rehearse it. The only points insisted on in this court are: 1. That the contract in this case having been made conjointly w-ith Noland and several others besides the -plaintiff, they should have been parties plaintiffs in the action. 2. That the court erred in not arresting the judgment, because the original agreement between the parties was not filed with the justice before suit brought. 1. The agreement under which-plaintiff’^ services rendered, is as follows: “An article 'OÍ agreement made and entered mt© this, the fifth day of September, eighteen hundred and thirty-six, between Andrew Sublett and Lewis Vasquies, trading under the firm and style of Sublett & Yasquies, the one part, and Joseph Wear, L. Bank, James Woorley, Smallwood Y. Noland, Gilliam Bailey, and Dana Smith, of the other part, witnesseth: that the said Sublett & Vasquies have this day hired the said Wear, Bank, &c. &c. to haul from the river Platte, thirty miles below the forks thereof, certain articles of fur and buffalo robes, for which-the said Sublett & Yasquies are to pay to the said parties, from the date hereof, the sum of three dollars p.er day, until the day that the said party may reach, with [518] their teams, the place of landing the said robes and furs? from and after which time the said Sublett & Yasquies are to pay to said parties three dollars per day, provided each "wagon hauls three thousand pounds, and should any wagon fail to haul the above amount, then they are to pay m proportion to the amount hauled, at the rate, of three dollars per day for every three thousand pounds hauled by each wagon, and should any or all the wagons haul a greater amount than three thousand pounds, the said wagons are to be paid in proportion to three dollars per day for every three thousand pounds thus hauled. The said wagons are to be wrell prepared, &c. The said Wear, Bank, &c. &c., are to respectively furnish themselves and teams with all and every thing needed; in short, to be at all expense that may be incurred about the wagons, &c. The said teamsters are to deliver their respectivo loads at Everett’s warehouse, on the Missouri river, and on the delivery thereof, the said Sublett & Yasquies are to paj^ to them the amount that may be due to each in ac-coi dance with the amount by each respectively hauled., The 6th sec. of the 2d art. of the tice^oourts * re-13" quiring ment of writing been0exefutedaby the "defendant, 7 ?Pon which suit fii^with^he jus-tice before pro?-eas sha11 l?sue> tory.erely duec" [518] “It is further agreed and understood, that the .said S. & Y. are to pay to the said parties, upon their return trip, at the rate above specified, until their return here at Everett’s landing, provided the said wagoners should not lose their teams'by Indians; but in all cases the said teamsters are to make usé of every precaution to prevent the loss of their teams in any way whatever; but especially to prevent their animals being stolen by the Indians. Lindsay Bank, Gilliam Bailey, James Woorley, James Wear, William Bailey, S. V. Noland & Co.; Vasquies & Sublett.” There is nothing in this instrument which indicates that the interest of the several parties who were to perform the services was joint; on the contrary, their legal interest was clearly several. Each owner of a team was to be paid in pimportion to the amount hauled by him, and the number of days consumed in performing the trip. Their legal interest being several, a joint action could not have been sustained. There was no error on this point. 2. The second objection is founded on the refusal of the court below to arrest the judgment, because the original agreement was not Med with the justice. In support of objection, the 6th section of the 2d article of the law relating tó justices’ courts, is relied on. This court is not PrePared to say that the suit in this case was founded on the instrument containing the terms of the contract. was pass-ed for the benefit tIie defendant, the natureofttie claim set up by plaintiff; the afcuredlo the de-fendant may be waived by his own aoL After an appeal taken to the circuit court it is too late for the plaintiff to object, for the first time, that the original agreement was not filed with the justice before suit brought, as the circuit court is directed by the statute, to try the cause anew “witho at regarding any error, defect or other imperfection in the proceeding of the1 justice.” which was unsealed, and merely the evidence of the existence of a special contract. But admitting that this instrument is such a one as is contemplated by the statute, and ought to have been filed on the issuing of the summons, I understand thestatuterequiringthe instrument to be filed, to be merely directory. The act was passed for the benefit of the defendant, to apprise him of the nature of the claim set up by the plaintiff; and this advantage and benefit, thus secured to defendants, may be waived by their own acts. Had the defendants availed themselves of their technical advantage in time, the case might have stood differently. The cáse, however,’came up into the circuit court, which court is by law directed to try the cause anew, withoutof regarding any error, defect, or other imperfection in the proceedings of the justice.” There the plaintiff accounted for the absence of the original agreement, and in evidence a copy, and the court properly allowed the ' copy to go to the jury. _ Judge Tompkins concurring, the judgment of the circuit court is affirmed.