Falls v. Daily

• Decision Date: 31 October 1881
• Citation: 74 Mo. 74
• Parties: FALLS v. DAILY, Appellant.
• Court: Missouri Supreme Court

74 Mo. 74

FALLS

v.DAILY, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Nodaway Circuit Court.--HON. H. S. KELLEY, Judge.

REVERSED.

C. F. Booher and Strong & Mosman for appellant.

Heren & Son and W. W. Caldwell for respondent.

HENRY, J.

This is a suit on a contract, by which plaintiff agreed to purchase hogs in Iowa, (not exceeding 10,000,) at current market prices, for defendant, who was to pay him twenty-five cents per head commission, and all expenses incurred by plaintiff in keeping said hogs and driving them from the place of purchase to the town of Lenox. Stating the contract, the petition avers, that in November and December, 1874, and in January and February, 1875, plaintiff purchased and delivered to defendant 797 hogs, which cost $11,591.90, at current prices, and that he expended $116 in caring for and delivering them at Lenox, and that his commission amounted to $199.25. Making a total of $11,907.15. It then alleges that plaintiff received from defendant drafts on Fisher & Daily, as follows: November 16th, 1874, $2,000; November 20th, (about) $1,000; November 22nd, (about) $1,000; November 25th, 1874, cash by Hancock, $500; December 6th, 1874, (about) draft, $4,500; December 6th, 1874, draft, $2,500; December 22nd, 1874, (about) $1,200. Total, $14,700. Claiming credit for an unpaid draft for $500, dated December 20th, 1874, leaving the balance received by plaintiff, $14,200, $3,863.11 of which plaintiff paid to Fisher & Daily, and the residue, $10,339.89 was to be applied on the contract between plaintiff and defendant; claims that defendant is indebted to him in the sum of $1,570.26, and asks judgment for same and interest. Defendant, by his answer, admits a contract for the purchase of hogs, but denies that plaintiff's petition states it correctly, but does not indicate wherein--denies that plaintiff purchased and delivered 797 hogs, or exceeding 734, and that the hogs purchased cost $11,591.90--alleges that plaintiff delivered 734, and claimed and received pay for 746, and all expenses, and that there was a full and final settlement of the account between them, after the delivery of the last lot, and that defendant paid him what was then agreed upon as the balance. There was a verdict and judgment for plaintiff for $500, from which defendant appealed.

It is evident from the record, that all the issues made by the pleadings were found for defendant, except in regard to the $500 draft, for which plaintiff claimed a credit. On the face of the petition, it is impossible to discover on what ground that claim is made. He charges himself...