Robinson ex rel. Tiernan v. Shepard

| Mo. | Jul 15, 1843

Tompkihs, Judge,

delivered the opinion of the Court.

William Robinson and John D. McMurray, sueing to the use of Peter Tiernan, commenced their action against David Shepard, and had a judgment against him for two dollars and twelve cents, to reverse which they come by appeal, into this court.

It appears in evidence, that there was a voluntary association of persons in the city of St. Louis, calling themselves the Concert Hall Company, of which company the defendant, Shepard, was a member. The plaintiffs were mechanics in partnership, and had done some work for the said company.

A balance of $202 12 appeared, on the books of the company, to be due to the plaintiffs, appellants here, and they had agreed to receive in part payment, for their work and labor done, five shares in the Concert Hall building, at forty dollars each share. The appellants called a witness, who testified that the said company had a president, a secretary, and a board of trustees; that the appellants’ account against the ■ company was examined and allowed by the board of trustees to the amount aforesaid; that stock in the said company was ordered to be issued to the amount of two hundred dollars to the said appellants. The witness was at that time secretary to the company, and immediately made out the certificates of stock, but stated that Rene Paul, the president, refused to sign the certificates, alleging that the plaintiffs were indebted to him, and that he intended to stop the funds in the hands of the company for his own use.

The appellants then gave in evidence an instrument of writing, by which it appeared, that on the 5th day of February, 1840, they had assigned to Peter Tiernan, for whose use this suit was instituted, all their properly, &c., for certain purposes therein mentioned.

The defendant, appellee, gave in evidence a transcript from the docket of a justice of the peace, by which it appeared, that on the 12th day of June, 1840, said Rene Paul commenced suit in said justice’s court against the appellants, Robinson & McMurray, on a note made by'them to him for $90. The judgment of the justice being for the appellants, Paul appealed to the Court of Common Pleas, where he obtained a judgment, on which an execution was issued, and the stock of the appellants in the Concert Hall company was sold.

The court then, of its own accord, instructed the jury, that if they believe that the stock was not, in fact, issued and delivered to the plaintiffs, but was obtained only for the purpose of being levied, without the knowledge of the plaintiffs, and that the issuing of the stock according to contract was refused, they must find for the plaintiffs, appellants here.

A second instruction, to the same purpose, was given by the court. The appellants took no exceptions, either to the instructions given, or to- the evidence in the cause. They moved for a new trial because the verdict was against evidence, and the jury found against the instructions of the court, and also because erroneous instructions were given by the court.

If the counsel of the plaintiffs had believed the-instructions given by the court to be erroneous, he should have taken his exceptions; but the instructions given by the court appear to be as favorable to the plaintiffs, appellants here, as they could have been given, consistently with the evidence in the cause; and the finding -of the jury, being two dollars and twelve cents for the appellants, the balance of •their account against the association, called Concert Hall Company, after deducting the amount of the five shares sold under Paul’s execution, is, it seems, well sustained by the evidence in the cause.

The judgment of the Court of Common Pleas is affirmed.