Cozzens v. Gillispie, 4 Mo. 82

Cozzens v. Gillispie

4 Mo. 82 | Mo. | 1835

Opinion of the court delivered by

Wash, J.

Gillispie the defendant in error, sued Cozzens the plain-tiffin error, in the St. Louis circuit court and got judgment, to reverse which Cozzens prosecutes his writ of error in this court. Several points have been raised and relied on by'the counsel for the plaintiff in error. The ly one entitled to much consideration in the estimation of this court arises out of.the refusal of the circuit court t0 permit the deposition of one Walter D. Scott to be read in evidence to the jury. The ground upon which it was rejected as stated in the bill of exceptions was “that Scott the witness was interested, and therefore an incompetent witness.” How or why the witness was ..rendered- iñ-competent is not shown. It is stated in the bill of tions “that the delendant and one Walter D. Scott had once been partners,” but whether the Walter D. Scott whose deposition was rejected,1 was the same-who once been the partner-of the defendant was not shown or attempted to beshown, and cannot be legally’inferred from the identity of name. In looking at the whole case, if the deposition of Scott had been read to the jury, their verdict had been rendered as it is at present, this court would probably not reverse the judgment of the circuit court for refusing to grant a new trial — for it may well have been that the property remitted as stated Scott’s deposition was the same for which credits were given by the plaintiff in the account sued on, and this seems the more likely from the defendant’s letter of June 18,1831 in which lie says “agreeably to my promise *83your young man who called on me on the subject of your account with Cozzens & Scott, I have examined the books of that concern, and do not find any goods entered to you on consignment as represented by Mr. Scott unaccounted for” &c. Now whether the goods spoken pfby Scott were the same which were entered upon the books of the concern, and were accounted for in the credit given to Cozzens & Scott in the account sued on, or were other and different goods, does not seem clear to this court — for aught that does appear Scott "was a competent witness, and his deposition should have been given to the jpry for what it was worth. We think the circuit court decided correct!)*- on the other points. For rejecting the deposition of Walter D. Scott upon the proo,f as it stands, its judgment must be reversed and the cpuse remanded for a new trial in conformity with this opinion.