7 Mo. 224 | Mo. | 1841
Opinion of the Court by
Benoist and Hackney brought their action against Powell, Fontaine and Wilson, and judgment being given against them, they come into this court to reverse that judgment.
The suit was brought on a promissory note made by Thomas L. Fontaine, payable to Peter Powell & Co, which company consisted of the defendants in this suit. The evidence showed that this promissory note was endorsed by Peter Powell & Co., and delivered to the plaintiffs, Benoist and Hackney. The endorsement was proved to be in the
The bill of exceptions having detailed, first, the evidence of Joseph Y. Gamier, next of Waters, a clerk in the house of Peter Powell & Co., and thirdly, that of the last witness, clerk in the house of Benoist & Co., the plaintiffs, concluded thus: “To the giving of the said testimony of the said Waters, as hereinbefore stated, said plaintiffs by their coun
The only matter that could be properly excepted to among those above enumerated, is the testimony of Waters. I do not see that it-is liable to any objection; and accordingly on the argument of the cause in this court, the counsel of the o i plaintiff’s contended for a new trial, which they say was improperly denied by the circuit court. The bill of exceptions contains no motion for a new trial. The clerk’s history of the proceedings in the court shows a motion for anew trial, with the usual reasons; and also an affidavit of Benoist, one of the appellants, stating the discovery of new evidence since the trial of this cause. If a new trial should be granted him, he expects to prove by Joseph Powell, originally a member of the firm of P. <fc J. Powell, that he said Joseph Powell endorsed the notes first mentioned by the witness, Hays, clerk of the plaintiffs, Benoist & Co., for said Thomas L. Fontaine, and that the facts of the said endorsements having been afterwards made by Peter Powell & Co., were known to the said firm of said company ; and that by other testimony he expects to be able fully to establish that said members of said firm of Peter Powell & Co. were fully liable on said endorsement, &c. Admitting that all this was saved in the bill of exceptions, still a new trial ought not in my opinion to be granted. Where is the residence of this newly discovered witness, Joseph Powell, the man who endorsed as a partner the name of P. & J. Powell as security on several notes made by this same Thomas L. Fontaine, for this same sum of money, with an increase of interest now demanded in this cause? We are not told that he is a resident of the city of St. Louis. But from the facts detailed in evidence we are left to presume that he is a merchant long residing in the place. The circumstance that Fontaine always negotiated'this loan in person, and first procured Joseph Powell to endorse the name of the firm of P. & J.Pow-