Simonds v. Oliver

Decision Date31 March 1856
Citation23 Mo. 32
PartiesSIMONDS, Respondent, v. OLIVER, Appellant.
CourtMissouri Supreme Court

1. It is not erroneous for the courts of this state to refuse, when called upon generally to do so, to draft and give instructions to juries; they may confine their action in this particular to the giving or refusing of instructions specifically asked by the respective parties.

Appeal from St. Louis Law Commissioner's Court.

This was an action originally commenced before a justice of the peace, to recover twenty dollars, alleged to have been overpaid by plaintiff in making change. Plaintiff obtained judgment before the justice, and the cause was appealed to the law commissioner's court.

Upon the trial before the law commissioner's court, the plaintiff introduced testimony tending to prove that defendant (Oliver) purchased of plaintiff a lamp at the price of three dollars; that in payment thereof he offered plaintiff a twenty dollar gold piece; that plaintiff, not having the specie to give in change, defendant then offered him a twenty dollar bill; that plaintiff gave back to defendant the twenty dollar bill, and seventeen dollars in change. There was no evidence tending to prove that the twenty dollar gold piece ever came to the possession of plaintiff. Defendant, whose admissions constituted the only testimony introduced, declared that he had left the gold piece upon the counter of plaintiff.

The defendant asked the following instructions: “1. If the jury believe from the evidence, that the plaintiff has failed to prove that there was an actual carrying away of the twenty dollar gold piece in question, then the jury will find for the defendant. 2. If the jury believe from the evidence, that the plaintiff has failed to prove an actual deficit on his part, then the jury will find for the defendant.”

The court refused to give the instructions asked. Defendant excepted, and further asked the court to instruct the jury in some manner, without specifying any particular instruction to be given. The court failed to do so, and the cause was submitted to the jury entirely without instructions. The jury found for plaintiff, and judgment was accordingly given for him. Defendant appealed to this court.

Garesché and Farish, for appellant, cited 3 Mo. 14; 19 Mo. 102; 1 Mo. 473.

A. M. Gardner, for respondent.

LEONARD, Judge, delivered the opinion of the court.

There is no error in the record, and it is difficult to imagine why the case was brought here. The controversy...

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4 cases
  • Westberg v. City of Kansas
    • United States
    • Missouri Supreme Court
    • April 30, 1877
  • Dean v. St. Louis Woodenware Works
    • United States
    • Missouri Court of Appeals
    • March 29, 1904
    ... ... on a theory which was not presented by either side ... Spurgeon v. West, 23 Mo.App. 42; Davidson v ... Biermann, 27 Mo.App. 655; Simonds v. Oliver, 23 ... Mo. 32; Fearey v. O'Neill, 149 Mo. 467; Hall ... v. Jennings, 87 Mo.App. 627; Wheeler v. Bowles, ... 163 Mo. 398. (4) ... ...
  • Vastine v. Wilding
    • United States
    • Missouri Supreme Court
    • October 31, 1869
    ...Court of Missouri.October Term, 1869. Appeal from St. Louis Circuit Court. Lackland, Martin & Lackland, for appellant, cited Simonds v. Oliver, 23 Mo. 32; 2 Greenl. Ev. 34; McEwan v. Portland, 1 Oregon, 300; Entriken v. Brown, 32 Penn. St. 364; Goodwin v. Garrison, 8 Cal. 615; 21 Barb. 333;......
  • Wynne v. Aubuchon
    • United States
    • Missouri Supreme Court
    • March 31, 1856

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