Dudley v. McCluer

• Decision Date: 30 April 1877
• Parties: DUDLEY, APPELLANT v. MCCLUER.
• Court: Missouri Supreme Court

65 Mo. 241

DUDLEY, APPELLANT

v.MCCLUER.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

Bray & Cravens for appellant, as to the admissibility of the evidence to establish the general good character of respondent for truth and veracity, cited among others, Goldsmith v. Picard, 27 Ala. 142; Lander v. Seaver, 32 Vt. 114.

C. W. Thrasher & H. C. Young for respondent on the same point cited among others, Ruan v. Perry, 3 Caines 120; Townsend v. Graves, 3 Paige 455.

HENRY, J.

This was a suit in the Greene Circuit Court commenced in October, 1873. Plaintiff in his petition states that in December, 1859, defendant McCluer, and George R. and Clark Barrett, executed their note to Hash & Dudley, a firm composed of John Hash and Pullam Dudley, for $1,050, payable April 1, 1860, with ten per cent. interest per annum from its maturity; that on a settlement of the partnership, the note in question, became the property of said Pullam Dudley; that on the 28th day of January, 1866, said McCluer falsely and fradulently represented to said Dudley that he had paid a number of debts specified in the petition, on which he had been garnisheed as the debtor of said Hash & Dudley, amounting to within $414 of the amount of the said note executed by him to Hash & Dudley, and induced said Dudley to accept, in satisfaction of said note $414, and to deliver up the note to defendant; that said Dudley assigned said demand to plaintiff, who asks that said settlement be set aside, and for judgment for the balance of said note and interest. Defendant, in his answer, denies all of the allegations, except the execution of the note and the payment of the $414 in satisfaction of the same; states that he was garnisheed before said settlement, in several suits against said Dudley & Hash, including those named in the petition; that said Dudley and defendant went to the office of the justice of the peace in which said attachment proceedings were pending, and procured a list of said demands, when said Dudley offered to take $414 in full settlement and satisfaction of said note, which defendant accepted, and that he then paid Dudley that amount and took up the note. For a further defense he states that he signed said note one year after its maturity, without receiving any consideration therefor, and that Pullam Dudley knew it at the time of the settlement, and also relied on the statute of limitation as a bar to the action. The replication states a sufficient consideration for the execution of the note by defendant, and a state of facts which avoids the plea of the statute of limitations, and as there was abundant evidence to support the replication in those respects, and appellant does not urge those defenses here, no further notice will be taken of them. The cause was tried at the May term, 1875, by the court without the intervention of a jury, a jury not having been waived by plaintiff, and the finding was for defendant, and judgment accordingly, from which plaintiff has appealed to this court.

Plaintiff contends that it was a proceeding in equity, and that this court can and should review the evidence in the cause. We have but to say in regard to this point, that it was either a suit in equity, or the court committed an error in trying it without the intervention of a jury, but as it was treated by the court and the counsel, on both sides, as an...