Roussin v. St. Louis Perpetual Insurance

Gamble, J., delivered the opinion of the court1. The Perpetual Insurance company commenced an action of assumpsit against Roussin in the circuit court of Washington county, charging him as maker of a promissory note, payable to one Isaac Burnett and endorsed to the plaintiff. Roussin, after pleading the general issue, filed a petition for discovery, and the court ordered certain officers of the company to answer the petition. Answers were filed and the parties proceeded to trial. The plaintiff read in evidence a deposition of Seth A. Ranlett. It is stated in the bill of exceptions, that Roussin objected to the deposition and that the objection was overruled, but the grounds of the objection are not stated. The plaintiff read in evidence two acts of the general assembly, the first, incorporating the Insurance Company, and the second, changing its original corporate name. To these acts the defend [247] ant objected, but the ground of the objection does not appear. The de-i fendant then read in evidence his petition for discovery and the answers made to the interrogatories. After proving that George Burnett, Jr., was in the employment of Isaac Burnett, as clerk, on the 8th day of April 1842, he offered to read in evidence a receipt, signed by said George Burnett, in these words: “Rec’d, Saint Louis, April 8th, 1842, of Messrs. E. Roussin & Co. per Messrs. Chouteau & Valie four hundred dollars on apt. of note. ISAAC BURNETT, per GEORGE BURNETT, Jr.” This receipt was objected to by the plaintiff and was excluded by the court. The only instruction asked by either party was asked by the defendant in these words : “That all such parts of the defendant’s bill of discovery as were not answered or not sufficiently answered by the respondents, should be taken as confessed and considered as evidence for the defendant.” This instruction was refused. A verdict having been found for the plaintiff, the defendant moved for a new trial. A motion in arrest of judgment was also made on the ground that the Insurance Company could not legally take a promissory note, by indorsement, as the charter conferred no banking powers. The motions were both overruled. The defendant excepted to all the decisions of the court, made against him, and presents the same points here for consideration. It may be considered the settled rule of this court, to disregard all objections to the reading of depositions, unless the bill of exceptions shows the specific objection made and decided upon in the circuit court: Dickey and others vs. Malechi, 6 Mo. R. 186; Frost vs. Pryor, 7 Mo. R. 316 ; Field vs. Hunter, 8 Mo. R. p. 131; Bank of Missouri vs. Merchants Bank of Baltimore, 10 Mo. R. 128. The objection now made to portions of Ranlett’s deposition cannot therefore be considered. It cannot be known that the question now presented is that upen which the circuit court decided. It is not perceived upon what ground the defendant objected to the two acts of the general assembly. The counsel suggests in argument that these two acts should not have been, admitted without requiring the plaintiff also toread in evidence the act incorporating the Farmer’s and Mechanic’s Insurance Company ; but on examining the charter of the Farmer’s and Merchanic’s Insurance Company, it will be seen that the 13th section declares it to be a public law which is not required to be given in evidence. The objection to these acts is as general as that made to the deposi [248] tion of Ranlett and it is proper to state here, that the same rule which requires the specific objections made to depositions to appear upon the bill of exceptions, applies to other evidence and testimony given in a cause. The receipt offered in evidence, did not appear to have any connexion witli the note sued upon. By its own terms, it imported that a payment had been made by Roussin & Co. upon their own note. There is nothing in the.case tending to show that the note declared on, was the note of Roussin Go. or that the payment by Roussin & Co. as shown by the receipt, was applicable to this note. When this court is asked to reverse a judgment of the circuit court, because competent and relevant evidence was rejected, it must appear on the record that the evidence rejected might and ought to have had some influence in finding a verdict in the questions of fact. The receipt was properly rejected. The instruction asked by the defendant was properly refused. Our statutory proceeding, to obtain a discovery, is a substitute for the bill in chancery for the same purpose. The party who is required to ansiver, answers the interrogatories and the court will compel full and sufficient answers before the trial of the cause will be permitted to proceed. The party seeking the discovery, if he considers the answer insufficient, must except to it and have the decision of the court upon his exception. After he has proceeded with the trial and read the answer in evidence he cannot object to the sufficiency of the answer or ask for any farther action of the court upon his petition. The motion in arrest of judgment was properly overruled. The record did not show the nature of the transaction in which the plaintiff obtained his promissory note from Burnett the endorser, or what was the consideration for the endorsement. The plaintiff possessed all the powers conferred upon the Farmers’ and Mechanics’ Insurance Company. That company, by the 5th section of its charter, had power “to lend its surplus or unemployed money or capital on interest not exceeding ten per cent to companies, corporations or individuals upon personal or real security.” In the ordinary business of insurance, such corporations have debts owing to them for premiums and for other considerations. There is nothing then on the record to shew that this note was not secured by the company from Burnett for a debt due for premiums or for part of its unemployed capital loaned to him — nothing to show that it was received in any illegal business in which the company was engaged. As the points made by Roussin, for the purpose of reversing the judgment, are all ruled against him, the judgment of the circuit court is, with the concurrence of the other judges affirmed.