Kingsley v. Missouri Fire Co.

14 Mo. 465 | Mo. | 1851

Ryland, J.,

delivered tbe opinion of the court.

From the above statement, tbe principal question before us involves the correctness of the instruction given by the court below to the jury einpannelled to enquire and assess the damages.

The plaintiff contends that the court erred in the instruction which permitted nominal damages to be found only. He thinks that the default of the company to answer the interrogatories authorized the plaintiff to prove an indebtedness by the company to Cowie and another, although the summons, the allegations, and interrogatories, fall look to the fact of the company being indebted to Cowie, individually, and not jointly with another. It is true that some months after the company was garnisheed, the plaintiff filed his statement of the manner the debt accrued by the company, in which he says that Cowie and Ross worked for the company in partnership.

This case is not without its difficulties. The debt due to the plaintiff was originally due by Cowie & Ross. The plaintiff sued Cowie only; and garnisheed the Missouri Fire Company, as a debtor to Cowie individually. The plaintiff obtained a judgment against Cowie only. The garnishee failed to answer, judgment was rendered by default against the garnishee. A jury to find the amount of the indebtedness was em-panelled, and the court restricted the plaintiff in his evidence to the indebtedness of the garnishee to Cowie, and not to Cowie & Ross.

This remedy by attachment and garnisheeing is one of strict law. We do not know what right Cowie could have, individually, to sue the Fire Company for work and labor done by him and his partner Ross, as a firm — Ross still living. If Cowie could alone, so might Ross. There would be two actions pending by two plaintiffs, for one indebtedness to them as a partnership.

If Cowie could not sue the garnishee alone on this debt, then the garnishee should not, in this proceeding be liable to Kingsley fora debt due by the garnishee to Cowie and another.

I do not think the judgment by default against the garnishee, admits the plaintiff’s right to prove against the garnishee a joint indebtedness. I do not consider the assignment by Ross to Cowie of his interest of the amounts due them as partners, as having any weight in this matter ; accounts are not assignable so as to authorize a suit in the assignee’s name.

I come to the conclusion, with some hesitation, that upon the whole record there is nothing authorizing this court to reverse the judgment below. The forms of law have been complied with, and the judgment will have to be affirmed.