Greene v. Chickering & McKay

10 Mo. 109 | Mo. | 1846

Scott, J.,

delivered the opinion of the Court.

This was an action of assumpsit against Greene, the appellant, to recover the value of a piano forte. Plea — Non assumpsit. Verdict and judgment for the appellees — plaintiffs.

On the trial, Trenchery’s deposition was read for the plaintiffs, which proved that Trenchery was agent for the plaintiffs for selling piano fortes, of which they were the manufacturers, and that one was sold to the defend mt for the sum of $850, which remained unpaid. Another witness testified to the agency of Trenchery, and the sale .to Greene. To the reading of Trenchery’s deposition, the defendant objected on the. ground that he was interested, and to establish his interest, he offered to, read the deposition of one Floyd, to the reading of which the plaintiffs, objected, for the reason that the commission under which it was taken, was not under the seal of the Court from which it issued. This deposition was taken by the plaintiffs themselves. There is a rule of the Circuit Court of St. Louis county, which says that no exception to a deposition, saving to the competency or relevancy of the testimony therein contained, shall be allowed unless the exception be filed in writing before the trial of the cause wherein the deposition was taken, provided the deposition is filed two days before the trial. This deposition had been filed more than two days before the trial.

The defendant stated that his defence was, that Trenchery, the agent, held himself out as the owner of the piano whilst it was in his possession ; that he purchased it, believing in good faith that he was the owner of it, and that he was a creditor of Trenchery’s for $300 and more ; and was examining a witness in relation to the declarations of Trenchery whilst he was in possession of the piano to show that he held himself out as owner, when the declarations were excluded by the Court, to which an exception was taken.

The authorities seem to incline to the opinion that a deposition taken by one party to a cause, may be used by the other, notwithstanding it is not read by him at whose instance it was taken. Yeaton vs. Fry, 5 Cr. 335. 4 Bibb, 480. Gordon & Walker vs. Little, 8 Serg. & Rawl., 535. If, then,iafter a deposition is filed in a cause, the parties are equally entitled to the use of it, it would seem to follow from the rule of Court above stated, that if the objection taken by the plaintiffs to the deposition of Floyd, could be taken by them at all, it was not taken in time. After the deposition was filed, it was the defendant’s deposition, and the plaintiffs should have objected to the manner of taking it within the time prescribed by the rule of Court. If a party were permitted to take advantage of his own irregularity, in taking a deposition in order to suppress it, it does seem it would enable him in many cases to entrap his adversary.

As it regards the exclusion of the declarations of Trenchery, respecting the ownership of the piano, it may be remarked, that such declarations do not fall within the rule which prohibits a party from making evidence for himself by his own assertions. The object of the proof of the declarations of Trenchery, seems to have been to enable the defendant to avail himself of the p<-:n<-ip?e of law, that if a factor sell goods of his principal in his own name, without any notice on the part of the purchaser that the goods are not his own, the purchaser will be entitled to set off a debt due to him from the factor against the price of the goods. George vs. Cleggett, 7 D. & E., 359. Rabone vs. Williams, ib. Carr vs. Hencliff, 4 Barn. & Cres., 547. Story on Agency, §390.

The .case of Carr vs. Hencliff, 4 Barn. & Cres., 547, is an authority to show that the defence set up by the defendant was available under the ■general issue.

.Judge Napton concurring, the judgment will be reversed, and the ■cause remanded.