Lepper v. Chilton

Opinion of the Court by

Napion, Judge.

This was an action of assumpsit brought by the defendant in error against Lepper, .to recover damages for the breach of a special contract between the parties. The bill of exceptions presents the following state of facts. .The defendant, in error, Chilton, on his way from Virginia to this State, reached Cincinnati, on the morning of the 16th May, 1840, and applied to .Lepper, the master of a steamboat then lying at the wharf, for a passage on his boat for himself, his family, slaves, &c. The price was agreed upon between Lepper and Chilton, or his agents, and the plaintiff in error agreed and promised that his boat should leave the port of Cincinnati that evening, Chilton having represented to him, that upon no other terms would he consent to ship his slaves on the said boat. Repeated conversations were had between the captain and Chilton, or his'agents, in all of which repeated assurances were given by Lepper that the boat would leave that evening. The fires .were accordingly started and steam raised, as if for immediate departure, and the slaves of Chilton were transferred to the boat of Lep-per. The1 boat did not start until the ensuing day, and during the night one of Chilton’s slaves escaped, in the recovery of which he expended one hundred and ninety-five dollars.

Verdict and judgment was for the plaintiff Chilton, and motion for a new trial made and overruled

On the trial, the plaintiff offered in evidence several depositions, to the reading of which depositions defendant objected on the ground that it did not appear but that the witnesses whose depositions were taken, were within the reach of the process of the court. Pending this motion to exclude the depositions, the court allowed the plaintiff to prove that fact, and thereupon overruled the defendant’s motion.

To reverse the judgment below, the plaintiff in error relies on the following points:

1st. The plaintiff in error objects to the sufficiency of the notice given of the time and place of taking depositions, said notice having been served on defendant’s' counsel.

2d. The plaintiff in error objects to the action of the court, allowing plaintiff to supply proof of the residence of the deponents, pending the motion to exclude the depositions.

3d. The depositions themselves contain hearsay testimony.

4. The verdict was unsupported by the testimony.

The first and third points relied on, are not available to P^a*nt‘^> ’n error court. It does not appear what rules of the St. Louis circuit court are in relation to the-proper time of making objections to depositions; No objections seem to have been taken in the circuit court to the sufficiency of the notice ; if any objection existed, it has been waived, nor was the attention of the circuit court directed to the hearsay testimony., which it is here alleged the depositions contained.

Where no ob-madejoWthe reading of de-they fered in evi-then they toon°the°ted ground that proof that the witnesses in^reaeh^of fctTe court very properly allowed that objection to be removed by the introduction of other testimo-ay*

As it does not appear from the bill of exceptions, that the^e^en<^arit ma£le any objections to the depositions until they were offered in evidence, and then for the first time objected! their being read, because there was no proof that the witnesses were not within the process of the court, the court very properly allowed the plaintiff to remove that objection, iutroducing witnesses for that purpose,

The details of the testimony in this case 1 deem it unne-cessary to state, as the court are of opinion that every material allegation in the declaration was well found for the plaintiff. Judgment affirmed.

Judge Scott not sitting.