Perry's Administrators v. McGuire

Ewing, Judge, delivered the opinion of the court. This cause was commenced under the practice act of 1849, and after the issues were made up it was referred. Upon the report of the referee coming in, the defendant filed his motion to set it aside and for a review, stating the several questions of law and fact upon which a review was sought, but the defendant did not make a case preserving the evidence material to the points made in his motion. All the testimony taken by the referee, however, accompanies and forms part of his report. This omission, it is contended, precludes any inquiry into the finding of the facts by the,referee, and that the only question here is whether the facts as found warrant the judgment of the court. Such, however, is not the practice of this court. Where all the evidence is preserved, and the motion for a review distinctly presents the questions of law and fact, and states specifically the errors in the finding of the referee or court, this is deemed sufficient. On the trial before the referee, the witnesses, Brown and Perry, who are distributees of the estate, were examined on behalf of the plaintiff, against the objections of the defendant, on the ground that they were persons for whose immediate benefit the suit was prosecuted, there being evidence tending to prove that the debts of the estate had been paid. [293] We think this point is settled by the decision in the case of Stein v. Weidman, 20 Mo. p. 17. It is maintained, however, that the case before us is distinguishable from that by the fact that, in the one the debts had been paid, and in the other it did not appear that they had been, although the estate was admitted to be solvent. We think there is no foundation for the distinction contended for. In both cases the witnesses were interested as distributees in augmenting the fund of the estate, of which they were to share in greater or less proportions according as the residuum for distribution might be large or small; but the benefit to the distributee is alike certain and direct in both cases, differing only in degree or magnitude. The common law disqualification of interest in the event of the suit being, abolished by our code, the only test of competency is the relation in which the witness stands to the suit as a party. The provision in the New York code on this subject, which is like ours, as expounded by the courts of that state, is held to apply only to a person into whose hands the money collected in the suit will necessarily go, when it is received, or who might take it from the sheriff or the attorney as his own. (Freeman v. Spalding, 2 Kern, 373.) An action can not be said to be prosecuted for the immediate benefit of a person, unless such person would have a right to the amount recovered, or some portion of it, as soon as it should be received by the nominal plaintiff. It should at least be a case where he cotald maintain an action against such nominal plaintiff for money had and received by him to the witness’ use. (Butler v. Patterson, 3 Kern, 294.) In the case of Quinn v. Moore, decided in 1857 by the court of appeals, (1 Smith, 435,) which was an action by the administrator to recover compensation for causing the death of a minor, the mother, who was the sole heir and next of kin,- and there being no debts to charge the estate, was held a competent witness for the plaintiff, as not being a person for whose immediate benefit the suit was prosecuted. The plaintiff, Bredell, was a competent witness as to any [294] facts accruing anterior to his qualification as administrator. (1 R. C. 1855, p. 133.) The answer of McGuire to interrogatories filed against him in another suit was offered by the defendant and excluded. We are of opinion that only that part of the answer respecting the ownership of the slaves would have been admissible. This related to the repurchase of the slaves by McGuire and tended to prove they were his property. But if there was a gratuitous bailment of the negroes, as found by the referee, the defendant was not prejudiced by excluding the answer. The answer of the defendant to the petition traverses the allegation of indebtedness and alleges a settlement between Perry and the defendant a short time prior to April, 1849, of all matters of account between them, and that a balance was shown against the defendant of some two hundred and fifty dollars. Upon this part of the defence the referee found that the answer of the defendant in another suit being excluded, there was no evidence of a settlement and balance struck as pleaded; that the evidence introduced by the defendant on this point tended rather to show that he had a claim against Perry for services which would counterbalance defendant’s indebtedness, and might have been pleaded as an offset, or that Perry never intended to press the collection of such indebtedness ; but the defendant does not plead a set-off founded on such services, nor any discharge or voluntary surrender of the claim. We see no error on this point. The answer of McGuire was sufficient to put the plaintiff to the proof of his account,, and any evidence was admissible on the part of the defendant to reduce it by showing that he had been improperly charged in the account, or that he was never indebted for any items so charged. But under the pleadings he could not prove payment or a voluntary surrender by Perry of the claim sued for, and the referee could not take into consideration such evidence in his finding. Respecting the set-off for services of negroes up to the time of Perry’s death, the referee found that when McGuire departed from this state he left the negroes in question in charge of Perry, [295] who thereafter had charge and control of them ; that there was no contract of hire, express or implied, but that if the negroes belonged to McGuire, Perry stood in the relation of a depositary or gratuitous bailee, and only liable as such, and the question of ownership was therefore not passed upon. If the finding of the referee be correct as to the bailment, the defendant can not complain of the omission to decide the question of ownership ; for if the evidence warranted the finding, as to the character of the bailment, and we are of opinion it did, it became unnecessary to do so. As to the claim for services' of the negroes rendered since the death of Perry, it was very properly held to be inadmissible as a set-off against the debt sued for, which accrued prior to Perry’s death. In reference to the meal and flour, and blacksmith account, and that part of the store account appearing in the handwriting of Samuel Perry, deceased, who was a clerk of John Perry, it is objected that the evidence does not warrant the finding of the referee. The charges composing the two first mentioned, it appears were entered in the books regularly by the clerks from memoranda kept on slates at the mill and shop; and one of the clerks testifies that while he had not personal knowledge of the correctness of all the items, he knew that McGuire had his blacksmithing done at Perry’s, and generally got his flour and meal from Perry’s mills, and that the witness was in the habit of weighing the flour himself; that defendant seldom got meal or flour elsewhere. Another witness, also a clerk, testifies substantially to the same facts. In addition to this, it may be observed, respecting these as well as the general store account, that McGuire had access to Perry’s books; was in the habit of examining them ; entered therein many of the items of his own account, and was never heard at any time to object to it or question its accuracy. As to the California outfit, it is maintained the evidence does not warrant the finding. This is claimed to have been a gift from Perry to McGuire. The testimony of the wit [296] ness Daly, who was Perry’s clerk from 1846 to the death of Perry in September, 1850, as well as previously thereto, we think, is conclusive on this point, and fully sustains the finding of the referee. Judgment affirmed.