Ashby v. Winston

34 Mo. 311

• Court: Supreme Court of Missouri
• Decided: January 15, 1864
• Status: Published

Opinion

Bates, Judge,

delivered the opinion of the court.

This case was in this court once before, and the decision then made is reported in 26 Mo. 210.

After the cause was remanded, the defendant, Winston, answered, and the case was tried and judgment given for the plaintiff, and the defendant brought the case again to this court.

Several defences were attempted. 1. It was contended that the consideration of the notes upon which Dorris sued Winston failed, and consequently Dorris having no right of recovery against Winston, Ashby, as the equitable assignee of Dorris, had none. The defendant, by the instruction of the court, received the full benefit of this defence; but the jury found against him upon the facts.

2. That the assignment from Dorris to Ashby authorized M. M. Parsons to receive from Winston the money which he owed Dorris for Ashby, and that the compromise was made by Dorris with Winston by Parsons’ advice, and, therefore, that the payment made by Winston to Dorris (which was greater in amount than Dorris’ debt to Ashby) was, in effect, a payment to Ashby, and Winston was thereby discharged. This defence was overruled by the court. There was no error in this decision. The proposition was based upon the idea that Parsons was the attorney and representative of Ashby, made such by the assignment from Dorris to Ashby, which idea was incorrect. The only authority vested in Parsons was to pay over the money to Ashby, if he should reeeive it. He had no authority from Ashby to control the suit or to direct the disposition of the proceeds thereof. He was not Ashby’s attorney, agent, or representative. He was Dorris’ attorney in the case against Winston, but had no care of Ashby’s interest.

3. A portion of the money received by Dorris from Winston was paid by Dorris to Parsons, as the attorney of Charless & Blow, who had a judgment against Dorris to satisfy that judgment, and the defendant claimed that the amount so received by Parsons was pro tanto a satisfaction of Ashby’s claim. This defence was also properly overruled. Winston’s liability to Ashby was made perfect by his compromise with Dorris, in violation of Ashby’s right to control the suit and receive the fruits of it, and was not lessened by the mere fact that subsequently some of the money paid by him to Dorris was so used by Dorris that it came to the possession of Parsons as the attorney of third persons. Parsons did not receive the money from Winston either directly or through Dorris. He received it from Dorris, (for a particular purpose,) and without any regard to the service from which Dorris received it, and Winston was not affected injuriously or beneficially by Parsons receipt of this money, which had already passed beyond Winston’s control. No error prejudicial to Winston appears in the record.

Judgment affirmed.

Judges Bay and Dryden concur.