Cave & Morris v. Hall, admr. or Sumner, 5 Mo. 59

Edwards, Judge, delivered the opinion of the court* This was an action of assumpsit, brought by Cave and Morris against Hall, administrator of Sumner. The declaration contains two counts; one for goods sold and delivered to Sumner; the other for money laid out -and expended for Sumner’s use. By agreement between the' parties, leave was given the defendant, to file his pleas at a period l.<ter than that required by t.he statute, on .condition that said defendant caused copies of said pleas tobe served on the plaintiffs’ attorney. In the time agreed on, the defendant tiled his pleas, non assump-Sit and payment.

No copy ot cither ot said pleas was served on plaintiffs’ attorney. On the trial, the plaintiffs, by their attorney, appeared and prosecuted their cause. The plea of payment was withdrawn. Verdict was for defendant. The plaintiffs moved fora new trial. The court overruled the motion. The bill of exceptions shows this state of facts: In the spring of 1831, Cave and Morris purchased, for Sumner, goods to the amount of three or four hundred dollars. Sumner paid one hundred and fifty dollars for said goods, and was to pay the balance of the cost of said goods when he sold them.

Said goods were boxed up, and in the wagons of Cave and Morris. Sumner was with them; all the parties went on to Santa Fe together, trading in goods. The goods were carried to Santa Fe and there sold by Sumner during the same year, .part for cash, and part on a credit. Neither the amount sold ior cash, nor the amount sold on a credit, is stated. Cave, one of the plaintiffs, went to Santa Fe the next spring, 1832, and took the notes belonging to Sumner with him, and received the money for them. The amount is not stated.

On his return, Cave was robbed by a tribe of Indians that made a hostile attack and compelled him .to abandon his money. The failure of a tiie ^ ¿iTpieas, C(my pursuance of an no^ff tice'tontead,)Te waived by the PM- pleading The first point raised by appellant is, that he had no notice of defendant’s pleas. It is too late to take vantage of this objection now. He went to trial below, and. in doing so, waived bis right to object to the want of notice.

Where a party proceeds in his cause by pleading to the merits, or by doing any other act to admit notice, the court will presume notice or a waiver of notice—Hampstead v. Darby, 2 Mo. Dec. 25. The next point made by appellant is, that the delivered by Sumner to Cave did not amount to a payment of the debt. The delivery of the notes could not amount to a payment of the debt, unless it had been expressly agreed between the parties, that they should be so considered. This does not appear to have been the case.

But Cave received the money on these notes, and had the right to apply that money to the .payment of his debt. The jury could fairly have presumed that he did so. It would have been unreasonable to require Cave to pay this-money over to Sumner, that Sumner might immediately repay it to him in discharge of his debt.- Upon the whole, it is not clear that the finding of the jury was against the evidence; unless it were so, this court would not undertake to disturb the verdict. The judgment of the circuit court is therefore affirmed.