16 Mo.App. 537 (Mo.App. 1885), Fath v. Hake

Citation:16 Mo.App. 537
Opinion Judge:THOMPSON, J.
Party Name:C. FATH ET AL., Respondents, v. W. HAKE, Appellant.
Attorney:BROADHEAD & HAEUSSLER, and C. V. SCOTT, for the appellant. HOUGH, OVERALL & JUDSON, for the respondents.
Case Date:February 24, 1885
Court:Court of Appeals of Missouri
 
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Page 537

16 Mo.App. 537 (Mo.App. 1885)

C. FATH ET AL., Respondents,

v.

W. HAKE, Appellant.

Court of Appeals of Missouri, St. Louis.

February 24, 1885

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed and remanded.

BROADHEAD & HAEUSSLER, and C. V. SCOTT, for the appellant.

HOUGH, OVERALL & JUDSON, for the respondents.

OPINION

THOMPSON, J.

This is an action on what is alleged to be a stated account, embracing a large number of items of advances to cover losses, and charges by way of commissions, on sales and purchases of grain alleged to have been made by the plaintiffs, at the request of the defendant as his commission merchants. The answer denies (among other things), that the defendant ever assented to the balance therein shown, so as to give it the effect of an account stated, and sets up by way of special defence, that all the transactions for which the plaintiffs were entitled to make any charge against the defendant, were mere wager contracts, and hence illegal and void.

At the trial, which was had before a jury, the defendant testified distinctly that he had never assented to the account as correct, and that it was agreed between him and the plaintiffs, that these transactions were nothing but option deals, and that he need not receive any thing nor deliver any thing.

At the request of the plaintiffs, the court instructed the jury as follows: " The court instructs the jury that they are the judges of the credibility of the witnesses, and if they believe that any witness has sworn falsely upon any material point, they have the right in their discretion, to reject his testimony altogether." This instruction, it will be perceived, is in substantially the same language as the instruction which was held erroneous by this court, in the recent case of Evans v. Railroad Co. (16 Mo.App.522). It is not denied that by reason of omitting the essential element of wilfulness or knowledge, the instruction was erroneous in point of law; but...

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