Bartlett v. Draper

• Decision Date: 31 August 1834
• Parties: BARTLETT v. DRAPER.
• Court: Missouri Supreme Court

3 Mo. 487

BARTLETT

v.DRAPER.

Supreme Court of Missouri.

August Term, 1834.

APPEAL FROM THE CIRCUIT COURT OF MARION COUNTY.

TOMPKINS, J.^a1

Bartlett brought his action of assumpsit in the Circuit Court of Marion county against Draper, and had judgment there, and to reverse the judgment of that court Draper appeals to this. The bill of exceptions is in these words: “Zachariah G. Draper comes and moves the court to set aside the verdict of the jury in the above cause, and grant a new trial for the following reasons: First. After the jury retired from the bar to consult as to their verdict, two of the jury men left the jury room, and remained absent for and during the night, without leave of the court or consent of the parties. Second. The verdict of the jury is against the law and testimony. Third. The defendant was taken by surprise in the introduction of another new item in the plaintiff's bill of particulars, which the court, on motion, struck out of said bill of particulars, believing that he would be confined to said bill of particulars by him filed; and that he could not travel out of that bill; and that if the defendant had known he would be permitted to add the one hundred dollars spoken of in the deposition of Hiram Woodsworth, it not being found in the bill of particulars, he, the defendant, would have introduced witnesses to prove that Woodsworth was mistaken, and that no such sum of one hundred dollars was paid by Bartlett to said defendant, or to James L. McGill as his clerk, at the time mentioned and described in the deposition of Hiram Woodsworth; and the said defendant alleges that no such sum of one hundred dollars was charged or mentioned in the plaintiff's bill of particulars, as testified by said Woodsworth. Fourth. The court erred in instructing the jury that they might find other sums of money due the plaintiff than those charged in his account filed.

Zachariah G. Draper, the above named defendant, makes oath and says, that he was taken by surprise on the trial of the above cause in this, that the plaintiff introduced the deposition of Hiram Woodsworth to prove the sum of one hundred dollars paid by Bartlett to the said defendant's clerk, which said one hundred dollars was not charged in the bill of particulars filed in the cause, and it was known to said defendant that he did claim or could claim any sum or sums other than those set forth in the bill of particulars, and particularly that proved in Woodsworth's deposition, that he could have introduced evidence to show that Woodsworth was mistaken, and that no such sum of money was paid at the time...