Compton v. Johnson
| Citation | 19 Mo.App. 88 |
| Parties | JULIA A. COMPTON ET AL., Respondents, v. JAMES JOHNSON, Appellant. |
| Decision Date | 26 October 1885 |
| Court | Court of Appeals of Kansas |
APPEAL from Clinton Circuit Court, HON. G. D. BURGESS, Judge.
Reversed and remanded.
The facts are sufficiently stated in the opinion of the court.
A. W MULLINS, for the appellant.
I. The court erred in admitting the evidence concerning the charges made by defendant, as curator, for boarding and clothing Mrs Compton's minor child. This matter had been settled by the probate court, and the evidence was calculated to mislead the jury. Eddy v. Baldwin, 32 Mo. 369; State to use, etc., v. Roberts, 62 Mo. 388.
II. The plaintiffs' first instruction was misleading in assuming a specified indebtedness, without any evidence to support such entire amount, and is erroneous in directing the jury to compute interest unless the jury found from the evidence that the defendant was not to pay interest on the sum named. And his second instruction directed the jury, without any qualification, to charge interest against defendant for any balance owing by him. The statutes of this state require demand of payment to be made in the case of accounts before six per cent. interest " shall be allowed." Rev. Stat., sect. 2723. " It is a general rule that an action cannot be maintained for the interest of a demand after the principal has been paid." Stone v. Bennett, 8 Mo. 41; Tillottson v Preston, 3 Johns. 229.
III. The statute of limitations was pleaded as to several items, and instructions asked that suit was barred on these which were refused. This was error. Rev. Stat., sect. 141; Idem, sect 6.
IV. The motion for a new trial should have been sustained, because there was no sufficient evidence to support the verdict.
KINLEY & WALLACE, with W. H. SEARS, for the respondents.
I. The first instruction of plaintiffs in the light of the evidence was proper. The interest question was to be determined in the light of the agreements testified to. Russell v. State Ins. Co., 55 Mo. 585; Matthews v. St. L. Elevator Co., 59 Mo. 474; Porter v. Harrison, 52 Mo. 524; Raysden v. Trumbo, Ib. 35. The second instruction was based on the evidence of plaintiff; and the testimony of defendant acknowledged a demand made of him in 1878.
II. The complaint made by defendant, because of admission of evidence as to charges made for board and clothing of Mrs. Compton's child, is without foundation, because this was evidence tending to support one of the counts of the petition, and on that count the verdict was in favor of defendant, so that it certainly did not have the effect of misleading the jury.
III. The part payment saved all from the bar of the statute of limitations, and hence, there was no evidence to support defendant's instructions.
IV. No surprise is claimed as to the amendment; and besides, the jury found for defendant on that count.
This is an action in assumpsit. The petition contains three counts. As the jury found the issues on the last two counts for the defendant, who appeals, and the plaintiffs have not appealed, it is unnecessary to set out the substance of those counts. The other count, on which plaintiffs recovered, alleges, in substance, that in 1872 the defendant, as administrator of the estate of Charles Whitaker, deceased, made his final settlement with the probate court, by which it appeared that he was indebted to the plaintiff, Julia Compton, as the distributee, in the sum of $330.36; and that in the same year he became further indebted to her in the sum of $645.44 on account of the proceeds of certain lands sold by him, in which said Julia was interested as heir of said intestate. It was further alleged, that in 1869 the defendant also became indebted to her in the sum of $100.00 on account of a horse sold by him belonging to her; also, in the sum of $30.00 on account of wheat sold by him for her; also, in the sum of $55.00 on account of certain wheat and corn sold by him for her; and in the further sum of $50.00 on account of certain rent moneys collected for her, aggregating in all the sum of $1,180.80. It is then averred that after defendant had so received said money in the year 1872, he requested the said Julia to permit him to retain the same as a loan, and then agreed to pay her interest therefor, while he so retained the same, to which she assented; that defendant kept and used said money from June, 1872 to the second day of May, 1878, when he paid the sum of $975.50, leaving a balance due her of the principal sum of $205.30, and interest on the said sum of $1180.80, at the rate of six per cent. per annum, amounting to the sum of $421.93. Judgment is prayed for these sums.
The answer denied generally the allegations of the petition. It also pleaded the statute of limitations as to the items of the horse, wheat, and corn.
Plaintiff's evidence tended to show that the items of $330 and $645.44 became due and owing to her in the manner and at the time alleged in the petition. In fact there was no attempt at the trial by defendant to controvert these items. There was, also, evidence on the part of plaintiff tending to establish the other items of the account, except as to the rent money.
The evidence of both parties showed that the defendant did retain the money coming to plaintiff, Julia, on final settlement and from the sale of the land; and it further showed that in 1878 the defendant paid over to her the sum of $975.44, the principal of these items. The plaintiff, Julia, also, testified that the defendant, when he retained said money, promised verbally to pay her ten per cent. interest thereon. The defendant, on the other hand, testified that he retained this money at the request of Mrs. Compton, with the distinct understanding that he should not pay any interest while he so kept it, as it was merely for her accommodation that he retained it. Defendant, also, admitted selling the horse and keeping the money, but claimed he had paid it back to her at different times in small sums.
On this issue the jury returned a verdict in favor of plaintiffs for the sum of $546.91. The defendant brings the case here on appeal.
I. Counsel have discussed several questions arising on this record, but the only matters, in our opinion, deserving of consideration are, as to the correctness of the declarations of law given and refused by the court. The court gave for the plaintiffs, among others, the following instructions:
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