33 Mo. App. 418 | Mo. Ct. App. | 1889
delivered the opinion of the court. „ This is an action brought to recover the sum of five hundred dollars, claimed to be due from the defendant
I. The first error assigned is, that the court abused its discretion in forcing the defendant to trial during his absence and that of his witnesses. But plainly the record does not afford evidence of a state of facts upon which we can support this assignment. The action was brought on the seventeenth of September, and the trial took place on the third of the following January. There had been three months and a half in which the defendant might have prepared for trial. The statute recites: “If the affidavit does not contain a sufficient statement of facts, as herein required, the court shall overrule' the same ; but if, upon the contrary, the court shall find the affidavit sufficient, the cause shall be continued, unless the opposite party will admit that the witness, if present, would swear to the facts set out in
II. The next assignment of error is, that the court should have granted an instruction for anon-suit, on the ground that the evidence showed that the obligation sought to be enforced in the action was an obligation in favor of the plaintiff and Samuel Bowman jointly, wherefore neither could sue on it alone. The principle that, where an obligation is made to two or more persons jointly, all the obligees must join in an action to enforce it, is well settled in the jurisprudence of this state. Bush v. Haeussler, 26 Mo. App. 265, 272, and cases cited. But this is clearly not a case within the principle. The obligation in this case was that, for certain services to be rendered, the defendant was to pay certain compensation to the plaintiff and certain other compensation to Bowman. The obligation of the defendant to the plaintiff and Bowman was therefore a several .obligation to each, to be enforced by each in a separate action. It is quite immaterial that, in the rendition of the services for which they were to receive this several compensation, their joint action may liave
III. The third assignment of error is, that the court committed error in directing a verdict for the plaintiff, thus ignoring the evidentiary effect of the portions of the affidavit which were read in evidence. The court allowed the affidavit to be read in evidence so far as it contained any direct statement of facts, and also a part of it beginning with the words “and affiant is informed and believes.” The portion of the affidavit allowed to be read was as follows: ‘ ‘ This affiant further says that he is informed that the names of the witnesses residing in the city of New York are J. Ensign Fuller, A. L. Soulard, Chas. E. Simmons, John H. Bryant, and others; and expects to prove by said witnesses that they are officers of the Consolidated Refrigerating Company of New York, and that the plaintiff and one Samuel Bowman obtained from said company the contract between the said Consolidated Refrigerating Company and said plaintiff and said Bowman ; that said contract was afterwards assigned to the Automatic Refrigerating Construction Company, and by it assigned to this defendant herein, and said plaintiff and said Bowman represented said contract was free of all liabilities, when in truth and in fact affiant is informed and believes they agreed to pay to said company the sum of one thousand dollars, as a bonus for obtaining said contract; that he did not pay the same, and that the same was due at the time that this defendant bought said contract from said plaintiff. Further, that the said defendant was compelled to pay the said company, in order to obtain the consent of said company to the assignment of said contract to him, the said
The judgment is affirmed.