Barr v. Baker

• Decision Date: 31 January 1846
• Citation: 9 Mo. 850
• Court: Missouri Supreme Court
• Parties: JOHN BARR, ASSIGNEE OF W. T. BARR, v. WILLIS J. BAKER & MARTIN BAKER.

9 Mo. 850

JOHN BARR, ASSIGNEE OF W. T. BARR,

v.WILLIS J. BAKER & MARTIN BAKER.

Supreme Court of Missouri.

January Term, 1846.

ERROR TO SCOTLAND CIRCUIT COURT.

MCBRIDE, J.

This was an action by petition in debt, brought by Barr, against the Bakers, in the Scotland Circuit Court, on a promissory note, payable two years after date, for the sum of four hundred and twenty dollars, and dated the 10th October, 1840. The defendants filed two pleas; first, that the note was obtained by fraud, covin and misrepresentation; second, that the consideration of said note had failed. The plaintiff filed his replications to the pleas, and issue having been joined, the cause was submitted to a jury, who found for the defendants; whereupon the court entered judgment for the defendants. The plaintiff moved the court to set aside the verdict, and grant him a new trial, which having been overruled, he excepted to the opinion of the court, and has brought the case to this court by a writ of error.

The bill of exceptions shows that after the note sued on had been read in evidence by plaintiff, the defendants introduced as a witness, Mr. Hannes, who testified, that on the first morning of the present term of this court, he had a conversation with the plaintiff, who said he wished to have the trial over, in order that he might go back on Dr. Million. He did not know what was the consideration of the note, nor had he ever heard the plaintiff say what was the consideration; that in the conversation, the plaintiff spoke of a jackass, in connection with the suit, but what connection there was between the suit and the jack, the plaintiff did not say, nor does the witness know, except that from the conversation with the plaintiff. he understood that the suit was about a jack. That Willis Baker, one of the defendants, had a jack which he kept in the spring of 1843, and twenty-five or thirty mares were put to him, and that he knew of only six colts from that season; he personally knew of but ten mares being put, but understood there were twenty five or thirty. The jack was a fine-looking animal, but he did not consider him worth anything as a foal-getter. Cross-examined. Said he told plaintiff that he was a witness in the jack case, who replied that he wished the case was over, because if he could not recover of defendants, he would go back upon Million.

Sublett testified, that he had kept the jack belonging to Willis Baker, the spring of 1842, when six mares only were put to him, and no colts were produced he had been accustomed to the keeping of horses, and the jack was well kept; that he knew the jack when Million owned him. Witness went with defendants to the plaintiff to return the jack, after the commencement of this suit; plaintiff refused to take him back and give up the note, because his son William sold defendant the jack, and that he, plaintiff, had nothing to do with it; that William T. Barr, the assignor of the note, resided in Marion county, and the defendants in Scotland. He further stated that when he had the jack in 1842, he had taken him on a conditional purchase, and was to give $200 for him, provided he was a good foal-getter; that the jack would have been worth about $200, if he had proven a good foal-getter; but after he kept him the season, and found he got no foals, he did not consider him worth anything, and would not have given three bits for him, and so he returned him to the defendant.

Alread testified, that he had known Willis Baker's jack two or three years; put two mares to him the season of 1843, and got one colt; he understood that twenty-five or thirty mares were put to the jack that season, and he only knew of six foals; that a good foal-getter would get the greater part of the mares put to him with foal, but this jack he did not think worth anything as a foalgetter.

Howerton testified, that he had known the jack of Bakers three seasons; the season he stood at Edina was 1841: the season of 1842, Sublett had him, and the season of 1843, he was kept at home; many mares were pnt to him, and but few foals; he put him to several mares himself, and had seen the books kept by Baker in 1843, and that there were twenty-five or thirty mares entered in the books; that the jack was well kept, and in good order; that he considered the jack worth nothing as a foal-getter; that a jack is valuable only for breeding; that his breeding was not worth the expense of keeping him, and he was of no value.

E. Bryant testified substantially the same as Howerton.

E. G. Pratt testified, that in 1840, he knew a jack at that time owned by William T. Barr, and which was then in Marion county; that he saw the jack in the stable, but does not know of his having been let to any mares; he had heard it rumored that Barr sold him for $500 to Baker, but did not know of the sale himself.

Swan testified, that he had seen the jack; he is a small one; put two mares to him; had one colt; thinks the jack worth something; does not think him worth much as a foal-getter.

The plaintiff then introduced S. Bradshaw, who testified that he knew the jack of Bakers, when he belonged to Million, six or seven years ago; that the jack got three colts; that he did not know how many mares the jack went to; that he had supposed the jack was as good a foal-getter as jacks generally are; that the certainty of foal-getting by jacks, generally depends very much upon the manner of keeping them; that it is not sufficient merely to keep a jack in good order, but he must also be managed to correspond with their peculiar nature: that if a jack is kept up in the stable too much he will not be so sure a foal-getter as if he had more room to play about in: whilst Million had the jack, Mr. McCracken put one mare two successive years, and had a colt from each season.

Glover testified that his father put three four or five mares to Dr. Million's jack, and had but one foal; he had put about...