Waddingham v. Hulett

Citation92 Mo. 528,5 S.W. 27
PartiesWADDINGHAM v. HULETT.
Decision Date20 June 1887
CourtUnited States State Supreme Court of Missouri

On a question as to the terms of a certain settlement, plaintiff's testimony was opposed by the testimony of defendant and two witnesses, who claimed to have been present at the time of the settlement. Plaintiff had attached certain land, which defendant, on the day after the settlement, had conveyed to his two witnesses. Held that, for the purpose of affecting the credit of these witnesses, plaintiff might put the deed in evidence, show that the land which it purported to convey was the land attached by him, and that the deed was voluntary, and without consideration.

2. SAME — GENERAL REPUTATION.

The general reputation of a witness cannot be impeached by evidence of his general reputation at a distant place where he visited for three months.

3. TRIAL — INSTRUCTIONS — ISSUE.

The giving of an instruction which goes beyond the issues, and which is not sustained by the evidence, affords ground for reversal.

Appeal from circuit court, Audrain county.

W. H. Kennan and Macfarlane & Trimble, for appellant. Forrist & Fry, for respondent.

BRACE, J.

This was an action in the circuit court of Audrain county. The petition contained two counts, — the first upon an account for money loaned, money had and received, laid out and expended, and for labor performed, amounting to the sum of $3,505.16; the second was for board furnished defendant and two boys from November, 1868, to the year 1880, at $20 per month, respectively, amounting in the aggregate to the sum of $7,925. The defendant filed a plea in abatement, but afterwards withdrew the same. Judgment was rendered sustaining the writ, and defendant pleaded to the merits. The answer contained (1) a general denial; (2) a plea of accord and satisfaction; (3) a set-off for work and labor, and for money had and received, and for money paid, amounting in the aggregate to the sum of $2,781.90; (4) a set-off for the amount of a promissory note and interest executed by plaintiff to defendant, dated August, 1871, for the sum of $3,100, with interest on same from date, payable annually at the rate of 6 per cent. per annum. The plaintiff replied denying the new matter set up in the answer. The case was sent to a referee, who took the evidence, and stated an account between the parties, and made his report. The defendant filed exceptions to the report, and his exception to the finding of the referee upon the defense set up in the first special plea of the defendant was sustained, and the case continued to the next term of the court; and the next term the following issue was framed and submitted to a jury: "Was there a settlement between plaintiff and defendant on the twentieth day of January, 1882, in which the account sued on by plaintiff and itemized in his petition was settled? which defendant asserts and plaintiff denies."

This issue was found for the defendant, and thereupon judgment was rendered in his favor, from which, after an unsuccessful effort for a new trial, he appeals to this court. The only matters complained of as error arise in the action of the court on the trial of this issue. The issue framed left out the cause of action in the second count of plaintiff's petition, and defendant's set-off for $2,781.90 disappears, so far as the evidence in the case goes, and reappears again only in the instruction given by the court for the defendant. On the trial of the issue each of the parties testified in his own behalf, and each admitted that on the twentieth of January, 1882, there was a settlement made between them, in which defendant surrendered to plaintiff a note of plaintiff for $3,074.69, dated August, 1871, bearing interest at the rate of 6 per cent. per annum from date, and plaintiff executed a deed to defendant for 160 acres of land. Besides the parties themselves, there were present, when the terms of the settlement were agreed upon, only Frank and John Hulett. The defendant and the said Frank and John Hulett testified positively that the items charged for in plaintiff's petition were included in the settlement; that the plaintiff agreed to make a deed to the land, and give up and release all his demands against the defendant for the note. On the other...

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28 cases
  • Ruggeri v. Mitchell Clay Mfg. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 29 Marzo 1929
    ...and reading said instructions to the jury. Degonia v. Railroad, 224 Mo. 564; State ex rel. Coal Co. v. Ellison, 270 Mo. 645; Waddington v. Hulett, 92 Mo. 528; v. Water Co., 307 Mo. 607; Talbert v. Railroad, 314 Mo. 352; Allen v. Railroad, 294 S.W. 87; Kessler v. Power Co., 283 S.W. (Mo. App......
  • Ruggeri v. Clay Mfg. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 29 Marzo 1929
    ...and reading said instructions to the jury. Degonia v. Railroad, 224 Mo. 564; State ex rel. Coal Co. v. Ellison, 270 Mo. 645; Waddington v. Hulett, 92 Mo. 528; Kuhlman v. Water Co., 307 Mo. 607; Talbert v. Railroad, 314 Mo. 352; Allen v. Railroad, 294 S.W. (Mo.) 87; Kessler v. Power Co., 283......
  • State v. Steen
    • United States
    • United States State Supreme Court of North Carolina
    • 8 Junio 1923
    ......A man's character is to be judged by the. general tenor and current of his life and not by a mere. episode in it." Brace, J., in Waddingham v. Hulett, 92 Mo. 533, 5 S.W. 27. . .          See,. also, Wigmore on Evidence, § 1616, and cases there cited. . . ......
  • State v. Steen
    • United States
    • United States State Supreme Court of North Carolina
    • 8 Junio 1923
    ......A man's character is to be judged by the general tenor and current of his life and not by a mere episode in it." Brace, J., in Waddingham v. Hulett, 92 Mo. 533, 5 S. W. 27.         See, also, Wigmore on Evidence, § 1616, and cases there cited.         In Mawson v. ......
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