Oliver v. Love
| Decision Date | 19 January 1904 |
| Parties | OLIVER, Plaintiff-Appellant, v. LOVE et al., Defendants-Appellants |
| Court | Missouri Court of Appeals |
Appeal from Louisiana Court of Common Pleas.--Hon. D. H. Eby, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
James W. Reynolds for plaintiff-appellant.
(1) Defendants' counterclaim or set-off was in effect a separate suit by him against the plaintiff (section 4499, R S. 1899). This being true, plaintiff, as to the disputed items in set-off, is to be considered as plaintiff in this cause. As such it devolved upon him to prove the fact of the correctness of the various disputed items in his counterclaim, and the failure of the court to declare this to be the law as asked in plaintiff's refused instruction No. 2 was prejudicial error. Grover v. Henderson, 120 Mo. 367; Blum v. Shoe Co., 77 Mo.App. 367. (2) Aside from these points the action of the court in overruling defendants' motions for judgment was not error. The issue of fact as to the amount due on the note was a matter for the jury and not the court unless the jury was waived. R. S 1899, sec. 691. The amount due on the note had to be determined as the result of the calculations of the jury, not the court. Dyer v. Combs, 65 Mo.App. 148. (3) Defendants' remaining assignment of error is that the trial court refused to allow them interest on the verdict. They very discreetly omitted all the pleadings from their so-called abstract of the record. Neither of their answers in the cause state or pray for interest and they can not complain now if they are required by the law to lie in the bed of their own choice. Shockley v. Fisher, 21 Mo.App. 551; Patterson v. Mo. Glass Co., 72 Mo.App 492; State ex rel. v. Gold Spring Distilling Co., 72 Mo.App. 573; Givin v. Refrigerator Co., 66 Mo.App. 315; Bradley & Co. v. Asher, 65 Mo.App. 589; Martin v. St. Louis, 139 Mo. 246.
Matson & May for defendants-appellants.
(1) Judgment. It being the manifest intention of the jury to render a verdict for the difference between the actual balance due on plaintiff's note sued on and the amount the jury found to be due defendants on the set-off, and "it appearing to the court by the pleadings in the case that the amount due plaintiff on the note sued upon was susceptible of accurate determination by ordinary computation" and by ordinary computation the difference was in favor of defendants, the court should have sustained defendants' motion for judgment and entered an affirmative judgment in favor of defendants for the said difference. Hackworth v. Zeitinger, 48 Mo.App. 32. The adjudged cases show that ever since the reign of Charles I. the courts have exercised freely the power of amending verdicts of juries so as to correct manifest errors, both of form and substance. Acton v. Dooley, 16 Mo.App. 448. (2) Mr. Justice Story lays down the broad rule in respect to amendments of verdicts that the court may make amendment of verdict and is only limited in so doing to the rule that the amendment must be such as to make the verdict conform to the real intention of the jury. Ib., supra; Fay & Co. v. Richmond, 18 Mo.App. 363; Provo Mfg. Co. v. Severance, 51 Mo.App. 260; Cox v. Bright, 65 Mo.App. 421. Case in which verdict was in excess of amount recoverable, court allowed a remittitur, computed correct interest and rendered judgment--held correct. McCormick v. Hickey, 24 Mo.App. 367. Where the amount of the verdict is larger or smaller than that admitted to be due, or which must be the extent of defendants' liability, if liable at all, it has been held that the amount of the verdict is a matter of law for the court. 22 A. & E. Ency. Pl. & Pr., 915. (3) Interest. Creditors allowed to receive interest. R. S. 1899, sec. 3705. Interest on amount of verdict. Where the party against whom a verdict in an action on an interest-bearing claim has been recovered, delays the award of judgment by some act of his own, as by motion for new trial or in arrest of judgment, the prevailing party should be allowed interest on the amount of the verdict from the date of its rendition. 28 Am. and Eng. Ency. Law, p. 317--and numerous cases therein cited. In Kinter v. State, 3 Ind. 86, interest was allowed on an award, and the conclusion drawn in 28 Am. and Eng. Ency. Law, 317, that the reasoning would apply with the same force in case of a verdict. In Martin, Exr. v. St. Louis, 139 Mo. 246, interest was allowed on award. Gest v. Cincinnati, 26 Ohio St. 275; Gibson v. Cincinnati Inquirer, 2 Flip. (U.S.) 88. See also, Griffith v. Railroad, 44 F. 574; People v. Gaine, 1 Johns. (N. Y.) 343; Dowell v. Griswold, 5 Sawy. (U.S.) 39. A year after suit was brought plaintiff recovered a verdict, and a reference was ordered to ascertain the amount due. Twenty years delay occurred, but not through plaintiff's fault. Held, that he was entitled to interest. Bartels v. Redfield, 27 F. 286. Interest on the amount of a verdict may be allowed from the date of the verdict to the date of the judgment, when entry of judgment is delayed by a motion for new trial. Equitable Life v. Trimble, 83 F. 85, 27 C. C. A. 404; Freemont, etc., v. Root, 69 N.W. 397; Hilton v. State, 83 N.W. 354; Railway v. Fox, 83 N.W. 744.
Both the parties to this action appealed and their appeals have been consolidated.
Plaintiff sued the defendants on a promissory note dated November 10, 1897, bearing interest from date at the rate of eight per cent, compounded if not paid annually. The execution of the note was admitted by the defendants, as were certain payments on it which were enumerated in the petition. Their answer, after making these admissions, averred that the note had been paid and discharged prior to the institution of this action.
A counterclaim was declared on by the defendants, consisting of various items amounting to $ 213.35. It was made up of a running account based on sales of grain to the plaintiff, pasturage for cattle, differences due the defendants on cattle trades, and other transactions which need not be stated. A replication was filed in which it was averred that the account between the parties was converted into an account stated for $ 530, by a settlement between the parties prior to the execution of the note in suit; that at the time the account was stated and the note executed, it was agreed the note should be in full settlement of all past transactions and dealings between the parties. The replication says further, that five of the items in the counterclaim, amounting to $ 108, were included in the settlement. Certain other items of the counterclaim are then enumerated in the replication, whose total plaintiff concedes the defendants were entitled to be credited with on the note and avers that the balance due thereon is $ 183.07.
It thus appears that as to part of the items in the counterclaim there was no controversy and this disposes of one of the plaintiff's assignments of error, to-wit; the circuit court's refusal of an instruction asked by the plaintiff that the burden was on the defendants to prove each and every item of their counterclaim and that if they failed to prove any of them by the greater weight of the evidence, the verdict should be for the plaintiff for all of those not thus proved. This charge was wrong; for while it was incumbent on the defendants to establish by a preponderance of the evidence, the validity of the disputed items, it was not incumbent on them to prove the undisputed ones.
One item of the counterclaim was for $ 17.60, for three hogs, alleged to have been sold to plaintiff by defendants May 10, 1896. Two instructions were asked by plaintiff as to this transaction, to the effect that the finding on it must be for the plaintiff. Those instructions were refused, the plaintiff says, erroneously. His argument is that the undisputed evidence shows the three hogs were sold by the defendants to Tim Lambertson and by Lambertson to Oliver, instead of being sold by the defendants to Oliver; that, therefore, Oliver did not owe the defendants for the hogs.
The evidence is that just as Lambertson had purchased from the defendants a bunch of hogs, including the three in dispute, Oliver came up and said he would like to have those three, and Lambertson agreed he might have them. They were separated from the others and Oliver drove them off. The testimony is certainly susceptible of the inference that, instead of Lambertson selling the hogs to Oliver, he waived his right to them and allowed the defendants to sell them to Oliver, which they did, Oliver acquiring them by a purchase from the defendants and becoming thereby indebted to the defendants. We, therefore, overrule the assignment of error based on the refusal of the instructions directing the jury to find for the plaintiff on this item of the counterclaim.
It is asserted the court erred in refusing to charge the jury that there was a presumption of law that the defendants owed Oliver $ 500 at the time they executed the note in suit and, consequently, unless the defendant had shown, by the weight of the evidence, that some of the items of the counterclaim were not embraced in said settlement, the verdict should be for the plaintiff on the counterclaim. The court instructed the jury to disallow such items of the counterclaim as they might find from the evidence were included in the settlement, and this was a sound instruction. It was not proper to instruct that there was a legal presumption as to how much the defendants owed the plaintiff at the date of the settlement, when there was evidence from which they were to find what was then owing and what transactions were included in it. Haycraft v Grigsby, 88...
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