1 Mo. 205 | Mo. | 1822
delivered the opinion of the Court.
Whitaker and others, assignees of Prentice & Bakewell, brought an action of assumpsit, in the Circuit Court of St. Louis county, against the plaintiffs in error, on a promissory note. The defendants plead non-assumpsit, and, by consent, the trial of the issue was submitted to the Court. The bill of exceptions tendered by the defendants, shows that on the trial, the plaintiffs produced in evidence, a joint promissory note to Prentice &. Bakewell, for §5,000, purporting to have been executed by Jacob Reed, for himself, and by Wahrendorff, Oberl and several others, by Jacob Reed, their attorney in fact. The counsel for the defendant objected to tins note being jeceived in evidence, unless Reed’s authority to execute it should also he produced. The Court overruled the objection, and permitted the note to be given in evidence, without the evidence of Reed’s authority to make it. The defendants then offered in evidence, a power of attorney, purporting to have been executed by Wahrendorff, Obcr, and others, reciting an association in co-partnership; for the purpose of purchasing a steamboat, to be kept and used for the benefit of the company; and authorizing Jacob Reed, one of the partners, to make (he purchase, and to execute promissory notes, or to draw or accept bills of exchange, for, on account, and in the name of each of them severally, for an amount for each of the partners, therein spec'ally limited ; and also proved, that one of the endorsees knew of the authority under which Reed acted, before the note was assigned by Prentice & Bakewell. The pla’nlifl’s then produced in evidence, the articles of co-partnership mentioned in said power of attorney,_ and, upon the whole matter, the Court gave judgment for the plaintiffs, to which the defendants excepted. The plaint.ffs in error rely on two grounds: First, that the Circuit Court erred in receiving said note in evidence, without evidence of Reed’s authority to make it; and, secondly, in giving judgment for the plaintiffs. The first question involves the construction of an act of the Territorial Legislature, which provides, that the Court, before whom any suit may be pending, Lu-ded on any writing, whether it be under seal or not, shall receive such ia evidence of the debt or duty for which it was given; and that it shall not be lawful
Hence, it seems to follow, that the Legislature rather intended to change the rulo of evidence in actions founded on simple contract writings, than to alter the character or increase the obligatory force of the writings themselves. Before the statute, it was not sufficient for the plaintiff merely to prove the execution of the writing declared on, but the writing itself was subject to rules of evidence. It must, on its face, import soms legal effect, otherwise it proved.nothing; and that legal effect must agree with that set out in the declaration, because the allegations and proof must correspond. Under the statute, the writings must be given in evidence, and must, be subject to the rules of evidence in like cases at common law. If the plaintiff, on tlie general issue, failed to produce the writing declared on, he would be without evidence in the cause; and if he should offer a writing, the legal effect of which should materially differ from that set out in the declaration, or one, which, on its face, should import no legal effect against the defendant, such writing could not be received in evidence, although its execution should have been proved, or admitted. The note given in evidence in this case, purpor ting, on its face, to have been executed by attorney in fact, was not, in law, evidence sufficient to charge the defendants; because, in law, it does not refer itself to them without the authority to execute it. The Circuit Court, therefore, incorrectly received such note in evidence, without proof of the authority of the attorney to make it. On the second point, the bill o'f exceptions is informal, and, in some degree, vague; yet, by the ordinary rules of con
We are, therefore, of opinion, that the judgmont of the Circuit Court, in this case* ought to be reversed, with costs.