Broadwell v. Bouton

• Decision Date: 31 January 1867
• Parties: MOSES M. BROADWELL, Respondent, v. HENRY B. BOUTON, Appellant.
• Court: Missouri Supreme Court

39 Mo. 401

MOSES M. BROADWELL, Respondent,

v.HENRY B. BOUTON, Appellant.

Supreme Court of Missouri.

January Term, 1867.

Appeal from Kansas City Common Pleas Court.

Plaintiff sued defendant on an account of one hundred dollars, for goods sold and delivered to defendant by Wheatly & Thatcher, a mercantile firm, alleging an assignment by them to him (plaintiff) of said account.

Defendant answered, admitting the purchase and sale, but denying all indebtedness, and also denying all knowledge or information, &c., of the alleged assignment. The answer further alleged that long before the supposed assignment of the account sued on he held for collection a note for eight hundred and three 17/100 dollars, on said firm of Wheatly & Thatcher, and had an interest in said note exceeding the amount of said account; that no part of said note had ever been paid except the amount of the account which was made by defendant in order to collect so much of said note, and was understood at the time by both Wheatly & Thatcher and defendant to be in part payment thereof. To this answer there was no demurrer or reply.

The cause was submitted to the court for trial upon petition and answer.

The court, at the instance of the plaintiff, and against defendant's objections, declared the law of the case as follows, viz: “The matters set up in the answer are no defence to this action, and upon the evidence the verdict ought to be for the plaintiff for the sum of one hundred dollars, and interest thereon, from the 27th day of May, 1862, at the rate of six per cent. per annum.” Defendant excepted, and asked instructions, asserting his right to set off or apply so much of said note as belonged to him in payment of said account. These instructions were refused, and defendant excepted. The court rendered judgment for plaintiff. Defendant moved to set aside, which motion being overruled, he excepted, and took up the case by appeal.

H. B. Bouton, for appellant.

I. The instruction given for plaintiff was erroneous.

1st. Because it assumed the functions of a demurrer to a counter-claim or set-off, and of a motion to strike out, which, if filed within the time required by law and before trial, and sustained, would have enabled defendant to amend-- Prac. Act, R. C. 1855, p. 1233, § 15, and p. 1237, § 40; Simmons v. Sisson, 26 N. Y. 270, 271.

2d. Because the matters alleged in the answer constituted a complete defence. It contained ( a) a denial of all indebtedness; ( b) a denial of the assignment; ( c) it set up a counter-claim or set-off--Prac. Act, p. 1233, §§ 13 & 14.

3d. Because it (the instruction) excluded all evidence, and relieved the plaintiff of the necessity of making any proof whatever, even of the alleged assignment--26 N. Y. 270, 271.

4th. The instructions of defendant should have been given--R. C. 1855, p. 322, § 4.

II. The judgment is against law.

1st. Because plaintiff having failed to demur, or reply to defendant's counter-claim, judgment should have gone for defendant--Prac. Act, R. C. 1855, p. 1233, § 16; Simmons v. Sisson, 26 N. Y. (Ct. of App.) pp. 270-71.

2d. Because the action was founded on an unliquidated demand, and it does not appear from the bill of exceptions that plaintiff adduced any evidence in support thereof.

Douglass & Gage, and Ewing & Smith, for respondent.

There is no evidence preserved in this case, and the judgment in this case cannot be reversed, even though the instruction given in the case is erroneous, inasmuch as the evidence, nor any part thereof, is preserved in the bill of exceptions--8 Mo. 617; 9 Mo. 165; 7 Mo. 285, 288.

It was the duty of the plaintiff in error to show by his bill of exceptions errors of the court below, and the presumptions are in favor of the judgment--9 Mo. 807; Id. 50.

The motion to set aside the judgment, &c., in this case was properly overruled, we think; but whether it was or not, so the judgment ought to stand...