Snyder v. Kirtley

• Decision Date: 28 February 1865
• Citation: 35 Mo. 423
• Parties: SNYDER, Respondent, v. KIRTLEY, Appellant.
• Court: Missouri Supreme Court

35 Mo. 423

SNYDER, Respondent,

v.KIRTLEY, Appellant.

Supreme Court of Missouri.

February Term, 1865.

Appeal from the Buchanan Court of Common Pleas.

The facts are stated in the opinion.

The court gave the following instructions for plaintiff:

1. [See opinion.]

2. That the promise of the church, or any committee of the church, to pay the amount, is not sufficient to discharge the defendant from his liability to the plaintiff, unless the same was reduced to writing, or some memorandum thereof made by the persons promising to pay, and signed by them or him.

3. That if the jury find for the plaintiff, they will find one half of the note less the sum actually paid to plaintiff in discharge of the same by the defendant or by the church.

Defendant asked the following instructions, the 1st and 3d of which were refused, and the 2d given:

1. If they believe from the testimony that after the note mentioned in plaintiff's petition was paid off by him, he presented an account to the church showing the amount of money received and paid out by him, an amount paid by him for the church, and that the amount paid in discharge of this note formed one item of said account, and that there was a settlement of said account between Snyder and the church, acting as a body or through a committee appointed for that purpose, and the balance due Snyder adjusted and agreed to, and the church agreed with Snyder to pay him, then they will find for defendant.

2. Any amount which defendant may have owed on his subscription to the church cannot be recovered in this suit.

3. If upon settlement with the said church, or its committee thereto authorized, said church agreed to pay the balance due to plaintiff, and he accepted such church as his debtor, this note being an item of said account, then the jury will find for defendant.

W. Jones, for appellant.

The appellant insists upon the following points. The first instruction given for the respondent was clearly erroneous for the reason that it took the whole case made by the pleadings and evidence from the jury. (Clark v. Hammerle, 27 Mo. 55.) If this instruction be correct, then there was no necessity for a trial. The appellant does not in answer assert that either he or the church had paid the money to Snyder, nor does he undertake to show by testimony that it has been; says that some portion of the money due Snyder was paid by some member of the church, and establishes the fact by proof.

S. Ensworth, for respondent.

BAY, Judge, delivered the opinion of the court.

The petition in this case alleges that the plaintiff and defendant executed their joint promissory note, dated July 27, 1860, whereby they promised to pay, ninety days after date, to A Holmes or order, the sum of $222.33, for value received, negotiable and payable without defalcation or discount; that said note was given on account of the joint indebtedness of the parties, each being liable to pay one half thereof, and that, about the time of its maturity, plaintiff, in the absence of defendant, paid off and discharged said note in full, and defendant promised to pay plaintiff one half thereof, with interest, &c.

The answer contains much matter that is redundant and superfluous, and which may be regarded as surplusage; it however denies that the consideration of the note was the joint indebtedness of plaintiff and defendant, and charges that it was given for lumber purchased for and on account of Rock-house Prairie Church in Buchanan county. That plaintiff, defendant, and one Edward Miller, were appointed at a meeting of...