Richey v. Branson

Thompson, J., delivered the opinion of the court. „ This is an action brought to recover the sum of five hundred dollars, claimed to be due from the defendant — 422 — to the plaintiff under a contract. The answer, after a denial of the allegations of the petition, except as thereafter admitted, set up a more extended version of the contract sued on than that stated in the petition, and further charged certain fraudulent representations in the procuring of it; and in a separate paragraph claimed damages in the sum of thirty-five hundred dollars by way of counter-claim. The new matter in the answer was put in issue by a reply. So much of the answer as set up a counter-claim was withdrawn during the trial. When the cause was called for trial, the defendant was not ready and he accordingly made an affidavit for a continuance, which the court adjudged sufficient unless the plaintiff would admit that the absent witnesses would swear to what the affidavit stated the defendant expected to prove by them. According to the record, “ plaintiff then admitted that the witnesses named in said affidavit would, if present, testify that the facts set forth therein were true, and insisted on going to trial, to which the defendant objected, which objection was overruled, to which action of the court defendant then and there at the. time duly excepted, and went to trial under protest.” After the plaintiff had closed his case, the defendant read those parts of the affidavit to the jury which contained the statements of what the absent witnesses would, if present, testify to; and, having no other evidence, rested. The only portion of this affidavit for a continuance which undertakes to state what the absent witnesses would testify to is as follows : “This affiant further states that he is informed that the names of the witnesses residing in the city of New York are J. Ensign Fuller, A. R. Soulard, Charles E. Simmons, John H. Bryant, and others ; and he éxpects to prove by said witnesses that they are officers of the Consolidated Refrigerating Company of New York, and that the plaintiff and one Samuel Bowman obtained from said company the contract between the Consolidated Refrigerating Company and said plaintiff and said — 423 — B owman; that said contract was afterwards assigned to the Automatic Refrigerating Construction Company, and by it assigned to this defendant herein, and that plaintiff and said Bowman represented said contract was free of all liabilities ; when in truth and in fact affiant is informed and believes they agreed to pay said company the sum of one thousand dollars as a bonus for obtaining said contract, that they did not pay the same, and that the same was due at the time that this defendant bought said contract from said plaintiff. Further that,” etc. The rest of the affidavit, which is somewhat long, connects all the subsequent allegations with the clause above underscored, namely, affiant is informed and believes. ’ ’ So far as the affidavit sets up any fraudulent representations of the plaintiff in procuring the contract sued on, it sets them up under the clause “affiant is informed and believes,” either as quoted in the above connection or as subsequently repeated. At the end of the affidavit there is this clause : “ And affiant believes that, if this case is continued until the next term of this court, he will be able to procure the testimony of said witnesses, and prove by them the facts herein stated.' I. The first error assigned is, that the court abused its discretion in forcing the defendant to trial during his absence and that of his witnesses. But plainly the record does not afford evidence of a state of facts upon which we can support this assignment. The action was brought on the seventeenth of September, and the trial took place on the third of the following January. There had been three months and a half in which the defendant might have prepared for trial. The statute recites: “If the affidavit does not contain a sufficient statement of facts, as herein required, the court shall overrule' the same ; but if, upon the contrary, the court shall find the affidavit sufficient, the cause shall be continued, unless the opposite party will admit that the witness, if present, would swear to the facts set out in — 424 — the affidavit, in which event the cause shall not be continued, but the party moving therefor shall read as the evidence of such witness the facts stated in such affidavit, and the opposite party may disprove the facts disclosed, or prove any contradictory statements made by such absent witness in relation to the matter in issue or on trial.” R. S., sec. 3596. It is plain that the court, in ruling that upon the plaintiff’s admitting that the witnesses would, if present,¿.swear to the facts stated in the affidavit, he was entitled to have the trial proceed, —did no more than comply with the express terms of the statute. The case bears little analogy to the case of State v. Wood, 68 Mo. 444, to which we have been cited, which was a case of felony, and in which the court held that a person accused of crime is under no obligation to prepare for trial until an indictment is found against him. II. The next assignment of error is, that the court should have granted an instruction for anon-suit, on the ground that the evidence showed that the obligation sought to be enforced in the action was an obligation in favor of the plaintiff and Samuel Bowman jointly, wherefore neither could sue on it alone. The principle that, where an obligation is made to two or more persons jointly, all the obligees must join in an action to enforce it, is well settled in the jurisprudence of this state. Bush v. Haeussler, 26 Mo. App. 265, 272, and cases cited. But this is clearly not a case within the principle. The obligation in this case was that, for certain services to be rendered, the defendant was to pay certain compensation to the plaintiff and certain other compensation to Bowman. The obligation of the defendant to the plaintiff and Bowman was therefore a several .obligation to each, to be enforced by each in a separate action. It is quite immaterial that, in the rendition of the services for which they were to receive this several compensation, their joint action may liave — 425 — been necessary. That happens every day. Two lawyers are employed, under separate contracts and upon a separate basis of compensation, to defend a suit. Their joint action may be required in the performance of the services, but the obligation of the client to pay them the agreed compensation is several to each of them. III. The third assignment of error is, that the court committed error in directing a verdict for the plaintiff, thus ignoring the evidentiary effect of the portions of the affidavit which were read in evidence. The court allowed the affidavit to be read in evidence so far as it contained any direct statement of facts, and also a part of it beginning with the words “and affiant is informed and believes.” The portion of the affidavit allowed to be read was as follows: ‘ ‘ This affiant further says that he is informed that the names of the witnesses residing in the city of New York are J. Ensign Fuller, A. L. Soulard, Chas. E. Simmons, John H. Bryant, and others; and expects to prove by said witnesses that they are officers of the Consolidated Refrigerating Company of New York, and that the plaintiff and one Samuel Bowman obtained from said company the contract between the said Consolidated Refrigerating Company and said plaintiff and said Bowman ; that said contract was afterwards assigned to the Automatic Refrigerating Construction Company, and by it assigned to this defendant herein, and said plaintiff and said Bowman represented said contract was free of all liabilities, when in truth and in fact affiant is informed and believes they agreed to pay to said company the sum of one thousand dollars, as a bonus for obtaining said contract; that he did not pay the same, and that the same was due at the time that this defendant bought said contract from said plaintiff. Further, that the said defendant was compelled to pay the said company, in order to obtain the consent of said company to the assignment of said contract to him, the said — 426 — sum of one thousand dollars.” It is to be observed that it is not directly stated as a fact in this affidavit that the plaintiff and Bowman agreed to pay the Consolidated Refrigerating Company one thousand dollars for obtaining the contract with the Automatic Refrigerating Company, nor is it anywhere stated that any of the witnesses named, if present, would swear to that fact. It is said that affiant is informed and believes that such is the fact; but the information and belief of the affiant is not and cannot be made evidence in the case under the statute. The portion of the affidavit which was read in evidence, therefore, had no evidentiary value as tending to support the special defense set up in the answer. As the answer admitted the making of the contract sued on, whereby the defendant agreed to pay five hundred dollars to the plaintiff for certain services, and the performance of these services on his part, and as there was no evidence to support the special defense attempted, the court was therefore right in directing a verdict for the plaintiff for the amount sued for. The judgment is affirmed. All the judges concur.