89 Mo. 240 | Mo. | 1886
Lead Opinion
The plaintiff, in 1867, before leaving this state, gave to the defendant’s testate, Green, fourteen notes, and took a receipt therefor, in which it is ■stated that the notes are to be collected and accounted for. Green died in 1882, and plaintiff filed an account in the probate court, giving a list of the notes and ■stating that he did not know whether the notes had been collected; that they could have been collected, and if not, deceased suffered them to become barred by the ■statute of limitations; that deceased was to have five per cent, for his services, and that the estate owed him, etc.
Three of the notes, signed by Downing and others, and one small one signed by Green, in all amounting to about seven hundred dollars, were found by the •executor among the papers of the deceased, with credits upon the Downing notes.. Some correspondence offered in evidence shows that from 1867 to 1882, Green collected
The court, for the plaintiff, instructed the jury that if deceased, while in the discharge of his trust, negligently permitted the statute of limitations to run against a part of the notes, and by reason of said neglect the debts were lost, then the plaintiff was entitled to recover ; and refused to instruct that if the notes could have been collected by resorting to legal means, and yet were allowed to run until barred, the plaintiff should recover. The court, of its own motion, in substance, told the jury that if the deceased, dn his lifetime, exercised the same kind of care in the collection of the notes that an ordinary prudent man would have done with his own business affairs, then the verdict thould be for the defendant as to the barred notes.
1. There is no doubt but the confidence induced by undertaking services for another is a sufficient consideration for a faithful discharge of the trust. 2 Parsons on Contracts [6 Ed.] 98. And a depositor makes out a prima facie case, even against an unpaid bailee, by showing a deposit made, demand for and refusal of the .thing deposited. Huxley v. Hartzell, 44 Mo. 370; Wiser v. Chesley, 53 Mo. 547. But this case does not' assume that form of action. So far as the barred notes are concerned, it is based upon negligence of the deceased. In all such actions the burden of proof rests upon the plaintiff, and he must prove each material fact
In Edwards on Bailments, section 77, it is said: 41 And there is a class of cases in which, without any delivery of goods or property, an unpaid agent is held responsible for the use of diligence in the business he undertakes ; as where a man receives a demand to collect gratis * * * The effort to collect must be made with ordinary diligence.” This is stated to be the rule In this class of cases in Newell v. Newell, 34 Miss. 385, which is a case in some of its features resembling the present one. The degree of care which the court required of the deceased in the collection of the notes was the same kind of care that an ordinary prudent man would have used with his own business affairs. This stated the rule favorably to the plaintiff. Nothing appears to have been said in the evidence as to the solvency •of the makers of the notes, though it was probably assumed on trial by both parties to the suit, that something could have been made out of Downing by suit. There is no claim of want of good faith on the part of the deceased. The instruction presented the case fairly ■«enough.
2. There was no error in allowing the defendant to read in evidence a note made by plaintiff to Green for three hundred and sixty dollars, dated in 1859, and found also among the papers of the deceased. It would
The judgment is affirmed.
Dissenting Opinion
Dissenting. — In Dougherty v. Whitehead, 31 Mo. 257, this court held, Scott, J., delivering its opinion, that: “Where one man, at the request of-another, performs beneficial services for him, unless it is agreed, or it can be so inferred from the circumt stances, that the services were to be rendered without-compensation, the lato, in the absence of an express1 contract, will imply a promise on the part of him for-whom the services were rendered, to pay for them what they are reasonably worth.” It is a well recognized principle of the common law, enunciated in every text book on the law of contracts.
Plaintiff asked the court to declare it as the law to the jury, but this was refused. When plaintiff proved the written agreement between him and the intestate, the law, in the absence of any other testimony as to compensation to be paid to the intestate, implied the-promise to pay him a reasonable compensation for his-services, and when the circumstances upon which defendant relied as proving that the service was to be-gratuitous were introduced in evidence, it was for the jury to determine whether they established that fact. Plaintiff made his prima facie case when he closed his-testimony, and should have had the benefit of an instruction as above indicated, throwing the burden of proving that the contract was for gratuitous service upon the defendant. It was not for the court to determine that question against the plaintiff. ‘ I say nothing as to the-