124 Mo. App. 465 | Mo. Ct. App. | 1907
(after stating .the facts). — 1. The. ■court gave the following instruction for plaintiff:
“1. The court instructs the jury that in this case it is admitted that the defendants Allen, Stark and Forsythe executed the bond sued on and read in evidence ; that the action in which the attachment was sued out has been finally determined; that the attachment -under Avhich relator’s property was levied upon has been finally determined in relator’s favor and the attachment ■dissolved, and the only matter for the jury to determine in relator’s suit is the amount of damages, if any, which he has sustained in defending such attachment, and in
Defendants contend that the instruction .does not limit the damages to securing a dissolution of the attachment, but includes the defense of the entire suit. The instruction will not bear this construction. Only the attachment suit is anywhere mentioned in the instruction, and to find there was another branch of the suit, or to allow plaintiff compensation for attorneys’ fees, etc., expended in the defense of the main suit, the jury would have to go outside of the instruction. Plaintiff’s evidence tends to show that $250 was a reasonable attorney’s fee for defending the attachment, but there is no evidence showing or tending to show that he had paid, or had contracted to pay, his counsel any stipulated sum as a fee. For this reason defendants contend the court should not have submitted the assessment of any attorneys’ fees to the jury. In a suit on an attachment bond, a plaintiff is entitled to recover reasonable attorneys’ fees in the defense of the attachment. [Kelly v. Beauchamp, 59 Mo. 1. c. 179.] Where an attorney has no contract with his client touching his compensation for services to be rendered, he is, after the services have been rendered, entitled to recover of his client reasonable compensation therefor. As there was no direct evidence that plaintiff had paid or agreed to pay his attorneys a stipulated fee for defendang the attachment, the legal inference is that he agreed to pay them a reasonable one, and we think the instruction properly left it to the jury to assess reasonable attorneys’ fees.
“4. The court instructs the jury that if you find from the evidence that after the note declared on in defendants’ counterclaim, dated May 15, 1893, was delivered to L. L. Allen for Allen, Stark & Co., the same was Avhile in the possession of said Allen, altered at his instance by writing the name- of W. H. Smith across the back thereof, and that such alteration and-writing was without the consent of relator Shipman then defendants cannot recover on their counterclaim and your verdict should be for relator and against defendants on such-counterclaim.”
And refused the following asked by defendants:
“8. The court instructs the juiy that if they believe from the evidence in this case that after the delivery of the note described on the first count of defendants’ counterclaim, being the note read in evidence for $450, dated the fifteenth day of May, 1893, and executed by Wm. H. White, the principal, to Allen, Stark & Co., said note was signed on the back thereon by one W. H. Smith at the request of L. L. Allen, or Allen, Stark & Co., then said Smith Avas in law a guarantor, and said note was not changed or altered and did not release plaintiff there-from.”
By writing his name on the back of the note after its delivery to payees, Smith became bound only as a guarantor. His signature did not alter the note and his obligation was separate and distinct from that of the makers. [Corbyn v. Brokmeyer, 84 Mo. App. 1. c. 652, and cases cited.] Was his contract of guaranty an alteration of the note? This question is answered in the negative by Judge Ellison, in Burnham v. Gosnell, 47 Mo. App. 1. c. 639. It follows that the court erred in giving plaintiff’s instruction and refusing that asked by defendants.
“3. The court instructs the jury that if you find from the evidence that the note declared on in the defendants’ counterclaim, dated May 15,1893, was paid by William S. White by delivering to L. L. Allen for Allen, Stark & Co., a note for even amount dated November 15, 1893, signed by Wm. S. White and others, and that said Allen accepted such notes for Allen, Stark & Co., and was authorized to do so in lieu of and in payment of said note dated May 15, 1893, then your verdict will be in favor of relator and against defendants on their counterclaim.”
And refused the following asked by defendants:
“The court- instructs the jury that under the pleadings and evidence in the case the note sued on in this action was not paid with the note signed by W. S. White, J. W. Shipman, George Davis and others and delivered to L. L. Allen by W. S. White.”
Ordinarily, nothing but money will satisfy a debt, but a creditor and debtor may agree on some other medium of payment and if, as Allen swore in his deposition, he took the renewal note in payment and satisfaction of the old one and marked it “paid” across, its face, the makers of the old note were discharged from all liability thereon. But as relator, in his answer to the counterclaim stated facts inconsistent with the idea of any intention of the maker of the note to deliver it to Allen this instruction was opposed to the issues as made by the pleadings and should not have been given.
4. Defendants asked the following instruction, which the court refused:
“The court instructs the jury that if they believe from the evidence in this case that plaintiff Shipman on or about the months of February or March, 1901, moved with his family to the Indian Territory, and did not move back to Missouri until about July, 1905, then the court
If the plaintiff moved Avith his family to Indian Territory, in February or March, 1901, and resided there or elseAvhere out of the State of Missouri, until July, 1901, when he moved back to this State, the note Avas not barred, as to him, by the ten-year Statute of Limitations. The instruction, ho-Avever, ignored tbe fact of residence in the territory or elseAvhere, and for that reason was properly refused. What is meant by residence, Avithin the meaning of the Statute of Limitations, is a mixed question of law and fact and should be defined by instructions to the jury. The second clause of the section (E. S. 1899, sec. 4282), upon which the instruction was intended to be based, provides: “And if, after such cause of action shall have accrued, such person (defendant) depart from and reside out of the State, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.” In Miller v. Tyler, 61 Mo. 401, the Supreme Court, construing this clause of the' statute, ruled: “Where one departs from the State, leaving a residence therein, and afterwards his family abandon that dwelling-place and remove to the house of a relative in another county, he will be held to have no usual place of abode within the State, AAthere service may be had upon him, and under a proper construction of section 16, article 2 of the limitation law, the statute avüI cease to run in his favor.” In Rhodes v. Farish, 16 Mo. App. 430, it was held: “An ‘absence from the State’ such as will, for a considerable period, render it impossible to obtain such service of process as will support a general judgment, is such an absence as Avill interrupt the running of the Statute of Limitations.” An instruction bottomed on the second clause of section 4282,
5. As before stated, the firm of Allen, Stark & Co., was composed of L. L. Allen, L. L. L. Allen, J. F. Stark, J. Forsythe and A. Forsythe. The attachment suit was brought by the firm. The attachment bond was only executed by L. L. Allen, A. Forsythe and J. F. Stark. On motion of defendants and of L. L. L. Allen and J. Forsythe, the latter two, over the objection of plaintiff, were made parties defendant and were, with the other defendants, permitted to plead the set-offs hereinbefore mentioned. If this was error, then the judgment should be affirmed, notwithstanding the errors noted above. A partnership debt cannot be set off against a debt due by an individual member of the partnership. [Lamb v. Brolaski, 38 Mo. 51; Weil v. Jones, 70 Mo. 1. c. 561.] But L. L. L. Allen and J. Forsythe, as members of the firm of Allen, Stark & Co., had a direct interest in this suit, for the reason that any judgment rendered against the makers of attachment bond would, in effect, be a debt against the partnership. They were, therefore, proper parties. [Green v. Conrad, 114 Mo. 1. c. 655, 21 S. W. 839; State to use v. Hudson, 86 Mo. App. 501.]
For errors herein noted, the judgment is reversed and the cause remanded.
