24 Mo.App. 97 (Mo.App. 1887), Anchor Milling Co. v. Walsh

Citation:24 Mo.App. 97
Opinion Judge:THOMPSON, J.
Party Name:ANCHOR MILLING COMPANY, Appellant, v. MICHAEI WALSH, Respondent.
Attorney:G. M. STEWART, for the appellant. A. R. TAYLOR and A. A. PAXSON, for the respondent. Two points are urged in this court by the appellant.
Case Date:January 04, 1887
Court:Court of Appeals of Missouri
 
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Page 97

24 Mo.App. 97 (Mo.App. 1887)

ANCHOR MILLING COMPANY, Appellant,

v.

MICHAEI WALSH, Respondent.

Court of Appeals of Missouri, St. Louis.

January 4, 1887

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Reversed nisi.

G. M. STEWART, for the appellant.

A. R. TAYLOR and A. A. PAXSON, for the respondent.

OPINION

THOMPSON, J.

This case was before us on a former appeal and is reported in 20 Mo.App. 107. After being remanded by this court, the case was again tried in the circuit court before a jury, and the result was that the plaintiff had a verdict and judgment for all the property in controversy, except two stake wagons and five sets of harness, as to which the jury found in favor of the defendant, that he was entitled to possession, and assessed the value of such property at two hundred dollars, and the damages for the taking and detention of the same at one thousand dollars. The plaintiff moved for a new trial on the ground (among others) of excessive damages; and the court, as the condition for overruling the motion for new trial, required the defendant to remit five hundred dollars of the damages, which was done. The court thereupon overruled the motion for new trial and rendered judgment in accordance with the verdict and the remittitur, and from this judgment the appellant prosecutes the present appeal.

Two points are urged in this court by the appellant.

I. The first is that the court erred in giving the first instruction requested by the defendant, because there was no evidence in the case to which it was applicable. This point is clearly not well taken. The instruction was as follows:

" The court instructs the jury that if they find, from the evidence in this case, that after November 25, 1881, the defendant did hauling for the plaintiff, and that by arrangement between the plaintiff and the defendant, the plaintiff, from time to time, was to deduct a portion of the defendant's earnings and apply the same on account of the money due by the defendant to the plaintiff, as evidenced by the bill of sale read in evidence; and if the jury believe from the evidence that the plaintiff by its proper officer, did, in pursuance of said arrangement, deduct from the earnings of the defendant as much, or more than was due under said bill of sale, and apply same upon the indebtedness evidenced by said bill of sale before...

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