Russell v. Barcroft
| Decision Date | 30 April 1825 |
| Citation | 1 Mo. 514 |
| Parties | RUSSELL v. BARCROFT. |
| Court | Missouri Supreme Court |
Russell sued Barcroft in the Circuit Court of Saint Charles county, on a promissory note for $804 66 2/3. The parties submitted the case to the court on the general issue. The plaintiff gave in evidence the note, dated 31st May, 1819, and the defendant gave in evidence a bond made by Russell to one Watham, and dated 10th November, 1818, and assigned to Barcroft by Watham, on 31st May, 1819, the day of the date of the note sued on. By this bond Russell bound himself to convey to Watham certain land, in case Watham should, on or before the 10th of September, 1819, pay Russell the sum of $804 66 2/3, and if Watham failed to pay, then the bond to be void. The note also was payable on the 10th September, 1819. Hempstead, the witness on the note, proved the assignment and delivery of the note to the agent of Russell; the witness also stated, that Barcroft agreed to pay Russell the sum of money mentioned in the bond, and accordingly executed the note sued on in this case, and Watham at the same time assigned to him the bond of Russell, as above. It appears also, that the land, which Russell by his bond agreed to convey, made part of a tract of land sold by Watham at the time to Barcroft. The plaintiff insisted before the court, that these facts were not sufficient to warrant a judgment for the defendant; the court decided that they were sufficient. Exceptions were taken to the opinion; judgment went for the defendant. To reverse this judgment an appeal is taken to this court, and the plaintiff assigns for error, first: That no issue is found. Second: That the court erred in deciding the testimony in this case to be sufficient to preclude the plaintiff from recovering.
Neither plaintiff nor defendant in argument noticed the first assignment. On inspection of the record the court finds these words; “neither party requiring a jury, and the court here having heard the proofs and allegations of both parties, and maturely considered the same, it is the opinion of said sourt now here, that said plaintiff take nothing by his writ, &c., but that the defendant do have and recover, &c., his costs, &c., and have execution.” The issue joined and necessary to be found is, whether the defendant did or did not undertake or promise. This issue is not found. This assignment of error is then thought to be well made. On the second assignment of error it was contended, among other things, by the...
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