
    ROBBINS vs. THE ALTON MARINE FIRE INSURANCE COMPANY.
    1. If the facts of a case warrant the finding of a jury, the Supreme Court will not disturb it.
    
      %. A person who has a right to a specific and proportionate part of the proceeds of the sale of property, may maintain assumpsit against any person having possession of it.
    
      3. If there is any evidence tending to prove a fact, its sufficiency should be determined by the jury ; in such case the court ought not to instruct the jury that a party “is not entitled to recover.”
    4. A new trial should not be granted to a party upon the ground that he Was mistaken as to the nature of his case, or as to what the witnesses would swear.
    APPEAL PROM ST. LOÜIS COURT OF COMMON PLEAS.
    Whittlesey for appellant.
    The facts of this case pvesent three questions for the decision of the court, upon the first two of which turns the error of the decision of the court below in refusing the instruction asked by defendant; and upon the third, the error in refusing to grant a new trial.
    1st. It appears by the facts of the case, that by the agreement between Dickenson and the Company, that D, was to have two-thirds of the pipe for his compensation for wrecking them. He was, therefore, tenant in common with the Company, and having soid the pipe to Robbins, as appears by the testimony, Robbins became entitled at least to the two thirds of Dickinson, and became tenant in common with the Company, owning two-thirds himself and the Company one-third. Upon this state of facts, we take the position, that one tenant in common cannot sue Ms co-tenant at law in assumpsit. The only case in which one tenant can sue the other, is when one has destroyed the chattel, and then the other may have an action on the case for destruction or conversion. With this exception, the only remedy one tenant in common has against the other, is an action of account or his suit in chancery. The rule that joint owners of a chattel cannot sue each other at law is well established; for example, the owners of a ship or vessel, partners in trade, and the only exception is that given above of an action on the case where the property has been destroyed. This rule is well illustrated by the rule, that all tenants in common or joint owners, must sue jointly. In proof of the above proposition, see 1 Chit. PI. 91; Thompson & Price vs- Elliott, 5 Mo. Rep. J18-8; lb. 525. Even in trover, one tenant in common cannot sue another, unless the chattel is destroyed, and a sale, as it conveys only the vendor’s own right, is no destruction; 1 Taunt, Rep. 241. In Heath vs. Hubbard, 4 East. Rep. 121, the court decided that the sale of a chattel was not equivalent to its destruction, and that trover would not lie; and the same point was decided in Danforth vs. Webb, 1 Day. Rep. 301; see also 1 Tenn. Rep. 658 ; 8 B. & C. 257; 9 Wend. 338; Wheeler vs. Horne, Wells, 209. If one tenant in common make repairs, he cannot sue in assumpsit without demand and refusal to repair; 6 Con. Rep, 475. One tenant in common cannot sue the other for portion of rent; 8 Cod. 304. One partner cannot sue the other at law until accounts are settled; 2 Conn. Rep. 425; 1 Wend. 532; 14 J- R. 318.
    2nd. The plaintiff and Dickenson having been tenants in common, and Dickenson having sold to Robbins in payment of a pre-existing debt, and the company having sued in assumpsit, such suit is a ratification of the sale by Dickenson, and all the consequences of such sale are therefore ratified. Besides it appears by the evidence that Dickenson was authorized by Tracy, the agent of the company, to make a sale, it was therefore, on that supposition a valid sale. At any rate they cannot be allowed to blow hot and cold, to say that the defendant has illegally taken their property, and at the same time sue him in assumpsit for property he has bought of their co-tenant. By sueing in this form of action, they have declared the sale by their co-tenant a valid sale, and must therefore look to his estate for any conversion of which he may have been guilty. See on this point, 4 Tenn. Rep. 211; 2nd Strange, 859; 1 Ark, 128; 1 T. R, 378; 7 B & C. 310; 3 B. & Adol. 580; 7 E. R. 164; 9 B. & C. 59; 5 M. & W. 83; 1 Watts & S. 108; 5 Met. Rep. 49.
    3rd. The court below erred in refusing a new trial to the defendant. The affidavit of defendant showed that he was entirely surprised by the evidence offered and the case made by the plaintiff. It was a case which he had not expected, of which he was not informed either by the declaration or by the bill of particulars, and the affidavit shows that if a new trial were granted, he could disprove the greater part if not the whole, of the plaintiff’s case. He came prepared to meet one case, and found on trial one of as entirely different character-. He was surprised: that surprise is a good ground for a new trial. See Hite vs. Senhart, 7 Mo. Rep. 22. For the case he had expected to meet he had made every preparation, and found on trial that all his preparations were useless ; that he was not prepared for the proof offered. 1 Wm. SI. 298; 2 Burr, 1216; '3 Taunt. Rep. 484; 3 B. & Ad. 328; 5 lb. 9, 1 Burr, 352.
    The court should also have granted a new trial because ihe damages Were excessive. The plaintiffs, at best, were only entitled to one third of the amount, for the defendant sold the pipe, being himself the owner t>f the other two-thirds by purchase from Dickenson s and there was no proof at all to show that he knew any thingof the mortgage of Dicltensbn to the company at the time he purchased. He knew Dickenson only as the ’owner, as it appears from the testimony of Krum, the agent and solicitor of the company; that Dickehson brought suit for the pipe in his own name as ifhe was Ihe sole owner and so recognized by the company. The damages were also excessive, as exceeding the amount claimed in the bill of particulars, in which no interest is claimed. For these reasons the appellant claims that the judgment of the court below should 'be reversed as erroneous.
    Leslie & Lord for appellee, submit %
    
    1st. The verdict was right, and is supported by the law and the evidence. The case seems a naked one.
    2d. The only question raised by the instruction asked in the court below, was. that the Insurance Company could not recover unless the jury found that Robbins received the money from the city on the sale of thepipe. The jury found, as a matter of fact, that Robbins did receive the money, and the finding of a jury upon a matter of fact Will not be disturbed by this court. 6 Mo. Rep. 6§; 8 Tb. 437 ; 9 lb. 838.
    3d. The affidavit upon which the plaintiff in error relies, is wholly insufficient in any point of view, either of surprise or of newly discovered evidence.
    
      First, To entitle a party to relief on the ground of surprise, there must be merits, and the surprise must be suchas care and prudence could not provide against. 2 Chitty, 194; 9 Johnson, N. Y. Rep, 77; 1 Wilson, 98; Graham on New Triáis, 174-
    Second, It is a new settled rule (hat a new trial will be granted because the party came to trial unprepared. 1 Wilson, 98; 9 John. Ñ. Y. Rep. 77, 2 Caines, 129; 8 Cowen, 273; Graham on New Trials, 176.
    
      Third, The court will not regard the statement of the plaintiff in error, that he was surprised by the testimony Of Judge Rrum and Ed. Tracy. Because no evidence was called to contradict or impeach them. Bell vs. Thompson, 2 Chitty Rep, 194.
    Because, if he shows a surprise, he does nut show how he was injured by it. 1st Aikens, Yt, Rep. 306.
    Because he does not even pretend that if a new trial was granted tb him, he could either impeach or contradict their testimony in any particular. Ñor will a new trial even be granted to enable a party to impeach a witness on the ground of his interest subsequently discovered, 1 Tenn.717; Graham on New Trials, 228.
    4th. A new trial will never be granted to enable a party to produce evidence which he might have produced at the trial by using ordinary diligence. 5 Wend. 127; 1 Wilson, 98.
    The plaintiff in error was fully apprised of the nature of the demand against a bill of particulars was furnished, and he was bound to have prepared his case and produced his witnesses, if he had any. I Strange, 660; Graham on New Trials, 196, 198, and cases there cited.
    5th. It is a novel application to a court of' law to apply for a.new trial because the ease turned out in proof different from whal the defendant expected; and that if a new trial should be granted, the party expected to prove a different case from the one made. Shepard vs Citizens’ In’s. Company, 8 Mo. Rep. 215; Graham on New Trials, 463 and following; 4 Mo-Rep 363; lb. 543; 6 lb. 600.
   Judge Bircii

delivered the opinion of the court.

By the sinking of a steam boat, the Alton Marine and Fire Insurance Company became the owners, by abandonment, of a quantity of iron water pipe. Shortly afterwards, one Dickenson entered into an agreement with the company, the substance of which was, as finally concluded, that the company was to advance him two hundred dollars to enable him to proceed with the enterprise of raising the pipe, and that when it was effected, he was to have two, thirds and the company one third of it; the whole, however,, to be placed in the hands of E. &, A. Tracy, who were to hold it as security for reimbursing ta the company the money thus advanced, together with twelve per centum interest upon it, as allowed by the law of Illinois. The money being advanced, and Dickenson having succeeded in raising a portion of the pipe, it was placed in the possession of the Messrs. Tracy, with a request from both Dickenson and the company that they should sell it to the city of St. Louis. It was subsequently removed from the lot upon which it had been placed in the possession of the Traeys ;■ whether before, at the time, or after its sale by Dickenson to the defendant, it is deemed unnecessary to enquire, as it is not pretended that either the Traeys or the company had any agency in doing it. Robbins afterwards sold the pipe to the corporate authorities of the city for the sum of ten hundred and twenty three dollars and sixty two cents, and received in the ordinary manner its official order and warrant for the money. As neither the testimony which has been preserved, nor the affidavit for a new trial, suggests any doubt respecting the proper redemption of the warrant in question, and as it is moreover proven that the treasury of the city was solvent at the time, we think the jury, who were instructed that “unless they believed from the evidence that Robbins received the money on the saje of the pipe, they would find for the defendant,” were warranted in finding that he did receive it. The repeated decisions of this court, refusing to disturb the finding of a jury under such circumstances, need scarcely be referred to. 6 Mo. Rep. 63; 8 Ib. 437; 9 Ib. 838.

It is objected, however, in the argument, but for which the point would have probably been unapparent, that the company having sued Robbins in assumpsit, and the parties being tenants in common, the action mas misconceived. How this might have been if the possession and the title (whatever their nature) had not been vested by each party in the Tracys for the specific purpose mentioned, need not here be discussed. Nor is it necessary, as it seems to us, to examine the intermediate means whereby the defendant came into the subsequent possession. Unless he purchased the interest and the lien of the company, its rights remained unimpaired ; and having found the defendant in the possession of a sum of money derived from the sale of property, out of which they were to have been paid a specific and proportionate part, we are unable to perceive the necessity of a resort to chancery, or any other proceeding in preference to the present, in order to settle with fairness and facility both the rights of the plaintiffs and the liability of the defendant. We perceive, therefore, no error in the courts refusal to instruct the jury, that “on the evidence in the case the plaintiff was not entitled to recover;” a mode of presenting a legal question, of which this court but repeats its previous reprehensions for the purpose of adding that stronger reasons must exist in the future than in the past, if a point thus raised is again entertained.

Concerning the alleged excessive damages, it is found that after adding to the sum advanced the interest which accrued upon it until the finding of the verdict of the jury, and adding to the sum of three hundred and forty one dollars and twenty cents, (which was the third part of the proceeds of the sale to the city) the interest, which in like manner accrued upon it, the aggregate sum thus produced exceeds that for which the plaintiff took his judgment. We cannot, therefore, disturb the judgment on this ground.

The only remaining reason for awarding a new trial in, this case is held to consist in the alleged surprise of the defendant. As this, however, when stripped of the ingenious drapery of the affidavit, resolves itself into the every day complaint of the loosing party, either that he was mistaken as to the nature of his case, or in the testimony of the witnesses who swore upon it, we apprehend that even the courtesy which should at all times be cultivated between the bench and the bar, does not require of us a more specific or extended demonstration of the insufficiency of the reasons assigned.

Perceiving then, upon a view of the whole case, no reason to justify the interposition of this courtj the judgment of the court of common pleas is affirmed, with costs.

Judge Ryland.

I concur iii affirming the judgment below, entertaining the opinion that the poiht of the parties being tenants incommor^ was not piroperly ráised in the inferior cburt, and that that court was not called on to decide that point.  