Corby v. Taylor

• Decision Date: 28 February 1865
• Citation: 35 Mo. 447
• Parties: JOHN CORBY, ADM'R OF JEREMIAH FLAHERTY, dec'd, Appellant, v. W. J. TAYLOR, Respondent.
• Court: Missouri Supreme Court

35 Mo. 447

JOHN CORBY, ADM'R OF JEREMIAH FLAHERTY, dec'd, Appellant,

v.W. J. TAYLOR, Respondent.

Supreme Court of Missouri.

February Term, 1865.

Appeal from Buchanan Court of Common Pleas.

Corby, as administrator of Flaherty, commenced in the Buchanan Court of Common Pleas three suits. One suit was commenced against defendant Taylor and one Grant, founded upon an account, in which suit Grant was not served with process, nor did he ever appear to the action; a second suit was commenced against defendant Taylor, founded upon two promissory notes executed by him to Flaherty, the deceased; and a third suit against defendant Taylor, founded upon an account against him in favor of said deceased in his lifetime. The last two suits have been consolidated and tried together, and the appeal in this case is taken from the judgment recovered upon said trial. When these three suits were commenced, the defendant Taylor filed an answer to each, in each of which answers he set up by way of offset an entire account for work and labor and materials furnished to and for the said Flaherty, and in his lifetime; said account being composed of various items, amounting in all to some $2,500, and running through the years 1856 to 1858 inclusive, and the account pleaded in this case being identical the plaintiff replied to each of these answers, and pleaded the offset set up in each case in abatement of the same offset set up in the other cases, &c. The said defendant then obtained leave to file an amended answer in each case. In his amended answer he divided and cut up the account before pleaded, taking a portion of the items of the account and pleading such portion as an offset to one suit, and then taking another of the items of the entire account and pleading said items as an offset to the second suit, and then taking the other portion of the items of said account and pleading them as an offset to the third suit. The suit commenced against defendant Taylor and Grant was afterwards tried upon petition and answer, and replication thereto, and the evidence adduced; and the said defendant Taylor, upon the part of said account so pleaded as an offset in said cause, obtained judgment for the sum of $637.10; after which the plaintiff replied to the offset pleaded in the remaining two suits as aforesaid, and set up in his replication as a defence to said offsets the recovery in the first case upon that part of the account pleaded in said cause, thereby insisting that the whole account before being separated was one entire and continuous account due from and to the same parties, and that only one recovery could be had upon said account.

The last two cases, having been consolidated as before stated, were tried together, and, the facts appearing as above stated upon said trial, the plaintiff moved the court to instruct that the case was as follows:

1. Plaintiff moved the court to instruct the jury, that plaintiff is prima facie entitled to recover the amount of the notes sued on, with interest thereon from the time the same became due until this time.

2. That if the jury believe from the evidence that the defendant had an open and running account against Flaherty in his lifetime, for carpenter's work done and lumber and material furnished in the course of said work, and that said Flaherty had several notes and accounts against defendant upon which several suits were brought, and that to one of these suits made out and filed a part of said account for carpenter's work and materials as an offset; that in said suit in December, 1860, defendant recovered upon said offset a judgment against plaintiff, as administrator of said Flaherty's estate, for the sum of $637.10, and that the account filed as an offset in this case is another part of the account of defendant against Flaherty for carpenter's work and materials as aforesaid; then the said judgment so recovered by defendant on the former portion of said account is a bar to his recovery upon his set-off as filed in this cause, and the jury cannot allow the same to defendant in making up any part thereof.

3. It is admitted that plaintiff commenced three suits against defendant on notes and accounts; that defendant filed his entire account of about $2,500 as a set-off; that defendant afterwards split up his account into three separate and distinct accounts, and filed each as a set-off to each cause of action; that one of said causes was tried, and defendant obtained judgment on said part of his account which occurred after the date of the items in the account filed as a set-off in this cause, and that the whole of said account so filed as a set-off, was due and owing when they were thus so split up and separated. It is also admitted that, before def...