Darrett v. Donnelly

• Citation: 38 Mo. 492
• Parties: JOHN DARRETT, Defendant in Error, v. B. M. DONNELLY, Plaintiff in Error.
• Decision Date: 31 October 1866
• Court: United States State Supreme Court of Missouri

38 Mo. 492

JOHN DARRETT, Defendant in Error,

v.B. M. DONNELLY, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1866.

Error to Marion Circuit Court.

Dryden & Lindley with H. L. Lipscomb, for plaintiff in error.

The statement of Donnelly made to Bird was part of the res gestæ and competent in explanation of the contract of the defendant previous to his possession of the slave--Boyden v. Moore, 11 Pick, 362; Inhab. of Groton v. Inhab. of Lancaster, 10 Mass. 110.

T. L. & W. R. Anderson, for defendant in error.

WAGNER, Judge, delivered the opinion of the court.

The petition in this case alleges that plaintiff, on or about the 22d day of October, 1859, sold and delivered to defendant a certain negro boy named Charles, and that the defendant accepted and received said boy, and agreed to pay plaintiff therefor the sum of twelve hundred dollars; and then charges that, by reason thereof, the defendant was indebted to the plaintiff, a demand and refusal of payment, and asks judgment.

Defendant, in his answer to the petition, denies that plaintiff, on or about the 22d day of October, 1859, or at any other time, sold or delivered to the defendant a negro boy named Charles, or any other negro; and he further denies that he accepted or received the said Charles or any negro boy, or that he agreed to pay plaintiff therefor the sum of twelve hundred dollars, or any other sum.

The answer then continues: Defendant admits that about the 22d day of October, 1859, plaintiff agreed to sell and deliver in Marion county, to the defendant, a certain negro boy named Charles, then in Bloomington, in Macon county, Mo.; and defendant then and there agreed to purchase said boy, and accept him in Marion county, at the price of twelve hundred dollars, provided that if upon an examination first to be made of the said boy, he should be found to be sound and free from all such blemishes and defects as would injuriously affect his sale in the market. Defendant further says that about the time mentioned defendant was engaged assisting the plaintiff in bringing the said boy Charles from Bloomington to said county of Marion, but he says he never did make the said preliminary examination of said boy, nor did he ever have an opportunity for such examination, nor was the said contract of sale ever consummated or the delivery of the said boy under said contract made.

On motion of the plaintiff, the court struck out all that part of the answer beginning with and following the words “defendant admits,” &c., and this is assigned for the first error.

The petition charges that the plaintiff sold and delivered to the defendant a negro boy named Charles, for and in consideration of a certain price, and that the defendant accepted the boy. The first part of the answer, which was not stricken out, denies each and every of these allegations. Here, then, a triable issue was made up, and it was incumbent on the plaintiff to prove the averments in his petition, which were expressly denied in the answer. That part of the answer stricken out was not responsive to the averments of the petition. An answer may contain as many causes of defence as the defendant may have, but they must be consistent defences, and separately stated.

A party cannot deny a sale, delivery and acceptance, and then in the same answer admit a sale and attempt at avoidance. Such a course of procedure would be destructive of the rules governing pleading under our practice act-- Alterberry v. Powell, 29 Mo, 429; Cable v. McDaniel, 33 Mo. 363; Adams v. Trigg, 37 Mo. 141.

The next error assigned is the action of the court in excluding evidence. On the trial of the cause before a jury, one Bird was called anexamined as a witness on behalf of the defendant, who having, among other things, testified that he was in company with ...