Bailey v. Ormsby

• Decision Date: 31 October 1834
• Citation: 3 Mo. 580
• Parties: BAILEY, ADMINISTRATOR, &C., v. ORMSBY.
• Court: Missouri Supreme Court

3 Mo. 580

BAILEY, ADMINISTRATOR, &C.,

v.ORMSBY.

Supreme Court of Missouri.

October Term, 1834.

APPEAL FROM PULASKI CIRCUIT COURT.

TOMPKINS, J.

Bailey sued Ormsby in the Circuit Court and now appeals to this court to reverse the judgment given for him in that court. This action was commenced under the act simplifying proceedings at law. The petition is as follows: Abraham R. Bailey, administrator of the estate of John Sullens deceased; plaintiff states that he holds a note on the defendant, Henry F. Ormsby, in substance as followeth: On or before the first day of March, 1833, I promise to pay John Sullens forty-two thousand three hundred and thirty-three feet of merchantable inch and a quarter pine plank, witness my hand this 18th Feb., 1830, (signed). Yet the said debt remains unpaid wherefore he prays judgment for his debt, and damages for the detention thereof, together with costs, and the said plaintiff brings here into court his letters of administration upon the estate of the said John Sullens, deceased. The defendant pleaded the general issue and payment. Issues were made up on both pleas, and on the finding of the jury, a judgment was rendered in favor of the plaintiff for $42 88. The testimony saved is, that the plank was worth seventy-five cents per hundred, and that a demand was proved. The defendant then proved that before the death of Sullens a settlement took place between him and the deceased; the witness stated that it was at the house of the defendant, in Gasconade county, and that he understood that Sullens held a note or notes of the defendant to a considerable amount, that the same were at the house of Sullens, and that the defendant paid Sullens, at that time, three hundred or three hundred and fifty dollars, which was to be credited on the said note or notes, by Sullens on his arrival at home. The witness understood from the conversation of Sullens and Ormsby at the same time, that by previous agreement betwixt the parties, the defendant had taken up certain promissory notes executed by said Sullens to different individuals, and that the notes so taken up constituted the said payment, and that it was in consideration “of said Ormsby having purchased said notes, that the said Sullens then and there agreed, to make and give the credit as aforesaid.” The defendant then offered in evidence certain notes, but failing to prove that they were the same spoken of by the witness before mentioned, the court on motion of the plaintiff's counsel excluded them. The jury retired to consider of their verdict, and after some time returned into court with a verdict of three hundred dollars for the defendant, which they explained to mean that the defendant was entitled to a credit on the note sued on for that amount, on account of the notes offered in evidence as aforesaid. The plaintiff's counsel, observing that those notes did not amount to three hundred dollars, requested that they might be “sent with the jury to give credit from,” which the counsel for the defendant consented to. The plaintiff then moved the court to instruct the jury that they could allow the defendant no credit on account of the said last mentioned notes so sent out with them. The court refused to give the instruction, and instructed the jury to find as they thought right upon the evidence.^(a) The refusal of the court to give the instruction prayed and the instruction given by the court were excepted to, and the plaintiff moved for a new trial, assigning for cause that the verdict was against the instruction of the court, and that the court mis-instructed the jury. It is assigned for error, that the court refused to grant the new trial. The testimony of the defendant as explained by the witness is, that he heard a conversation in the life-time of the intestate, between him and the defendant, in which it was admitted by Sullens, the intestate, that the defendant had taken up the amount, or thereabouts, of three hundred dollars of notes executed by Sullens to different individuals at his request, for which he said he would give a credit on defendant...