ENNIS V. CASE MANUF'GCO.
to the time of sale, and the provision that the sale should be subject to the payment by the purchasers of the "undue principal and interest on the certificates" was intended to denote that interest falling due between the date of the decree and the time of the sale should be paid out of the proceeds, while the interest which would fall due after the sale should remain a lien against the property as well as the principal. The unpaid principal and interest, or, as it is expressed in the decree, the "undue principal and interest," is what was unpaid, according to the tenor of the obligations, at the time of the sale under the decree. There is no merit in the point taken by defendants that complainant has not established the authenticity of its certificates as those which were issued by the receiver. The authentication of the trustee is not the only evidence that the obligations in suit belong to the authorized issue, although it may be the best evidence. Their genuineness is shown by other evidence; and, as they were put in evidence without any objection that their authenticity could not be proved by secondary evidence, that objection cannot now be urged. A decree is ordered for the complainant for the relief prayed in the
ENNIS V. CASE MANUF'G
(VVrcuit (Jourt, E. D. Mis8ouri, E. D. March 25,1887.)
A petition, in an action at law for breach of a contract for services, alleged that the contract was made October 1, 1884. and that it covered services to be rendered from January 1,1885, to December 31,1885. The plea set up the defense that the contract was verbal, and was within t4e statute of frauds. The reply';"'which concluded with a general denial, averred that. on January 15, 1885, the contract of October 1, 1884, was modified by agreement, by striking out one of its provisions, and that, as thus modified, the plaintiff duly performed the same. Held, on demurrer to the reply. that the reply was to the effect that the contract was made on January 15, 1885, and not on October 1, 1884, as at first alleged, and hence was bad, as being in the nature of a departure from the original cause of action.
At Law.- On demurrer to reply.
William H. Blu8, for defendant.
THAYER, J. This is an action atlaw for breach ofa contract for services. The contract is alleged to have been made October"r, 1884, and covers services to be rendered from January 1,1885, to December 31, 1885. A plea is interposed to the effect that the contract was verbal, 'and was not to be performed within one year, and hence is within the statutes of frauds. By way of reply to the plea, plaintiff av,ers that on the fifteenth of January, 1885, the contract of October 1, 1884, was modified by agreement by striking out one of its provisions, and that as thus
modified plaintiff duly performed the same. To the reply there is a demurrer. Obviously, that part oHhe reply which alleges It modification of the contract on 1.5,1885, is not a sufficient 'answer to the plea of the statute of frauds. If the pleader intended to state that, in point of fact, the contract described in his petitionas made on October 1, 1884, was not made until January 15,1885, and for that reason the plea of thestatut8' is not tenable, then the reply is in the nature of a departure from the ol1iginal cause of action, and on that ground the demurrer should be sustained. If, on. the other hann, the, pleader intends to adhere to the original averment that the contract on which he sues was made October 1, 1884, the plea of the statute i'emains unanswered, unless we construe the last c1r.use of the reply (which is a general denial) as intended to be a response to the plea of the statute. ;We think it evident; fro111 the form of the pleading, that, the pleader .intended to allege the modification of the' contract on. January 15, 1885, asa defense, to the of the statute. ' ,In other words t we think he intended to say that the contract on which he.sues was made ,on January, n, 1885,i.nstead of October 1, 1884,as'atfirst alleged·. , Our judgment is, therefore. that the reply is bad, as being a departure from the originiU' cause of action. We accordingly sustain the demurrer. Plaintiff can only avail himself of the facts stated in the reply (if they constitute a defense to the plea) by an amendment of his petition. The petition canthereof contained not be amended by virtue of in the reply. " , ,
BELLEVILLE SAV:. BANK V. WINSLOW.
(Oircuit Court, E. D.
¥i8SQurt, E. D.
April 25, 1887.).'
PAR'rNERSHIP-J'UDGMENT AGAINST-;-SUIT AGAINST PARTNER.
, Under:Rev. St. Mo. 1879, §658, which provides that "all contracts which, by common law, are joint only, shall be construed to bejointa.nd several," in a snit upon a judgment recovered against a firm, all the partners are not necessary p a r t i e s . " , In Missouri, advantage cannot be taken of the statute of limit&ti()ns otherwise than by plea. except in those cases where the statute creates ail absolute bar by lapse of time, without any exception.
LIMITATION OF ACTION-PLEADING.
Demurrer to petition.
Oharles W. Tlwmas, for plaintiff. J. W. Hamill and Henry W. Bond, for· defendant.
THAYER,J. The first count of this petition is upon a judgment recovered in the Southern district of Illinois against the defendant and one James H. Wilson, who were partners, and as such, under the firm name of Winslow and Wilson, contracted the debt out of which the judgment arose. Winslow has been sued alone upon the judgment. There is a