Fenton v. Perkins

• Decision Date: 30 April 1831
• Parties: FENTON v. PERKINS.
• Court: Missouri Supreme Court

3 Mo. 23

FENTON

v.PERKINS.

Supreme Court of Missouri.

April Term, 1831.

ERROR TO BOONE CIRCUIT COURT

TOMPKINS, J.

Fenton brought his action against Perkins before a justice of the peace, and had judgment for seventy-five dollars. Perkins appealed to the Circuit Court where the judgment of the justice was reversed. On the trial it was proved that Fenton sold a horse to Perkins for two notes, one of Perkins' himself for $5, the other a note of John McMickle for $75. The note of McMickle at the time of making the contract, was at the defendant's house, and he agreed to deposit it at Dr. Bennet's in Columbia for the plaintiff. A note was accordingly deposited for Fenton, which he refused to receive, alleging that it was not such a note as he had contracted for. He said that he had contracted for a note on John McMickle, and that the note delivered to him was subscribed John Mickle. Testimony was introduced to prove that Fenton knew that the note left at Dr. Bennet's for him, was the same for which he had contracted. Evidence of the value of the horse was given. It varied from twenty to forty dollars. The defendant was allowed to give evidence to the jury, that he had offered to restore the horse to the plaintiff, if the plaintiff would restore the defendant's note. The instructions prayed for by the plaintiff, were substantially as follows: First, that if Perkins and Fenton understood the contract differently, the jury must be governed by the fair and plain understanding of the evidence, i. e. must give to the evidence of the contract, a plain common sense construction. Second, that if the jury believe that Fenton contracted for a note of John McMickle, and that the note which had been delivered, did not agree with the description, then they must find for the plaintiff, he having a right to receive a note executed by John McMickle, subscribed with his name in a legible manner. Third, that if Fenton contracted for a note for $75, that the value of such note, and not the value of the horse, after deducting therefrom Perkins' note for $5, was the true measure of damages. These instructions were refnsed and others, given. The following are the instructions given by the court: First, that in the construction of contracts, the understanding of the parties is to be given, and that understanding is to be collected from the circumstances attending the transaction. Second, that in this case the judgment of the justice of the peace was glaringly wrong, it being for $75; that the measure of damages in this case, is the value of the horse at the time of the trade and interest thereon by way of damages, after deducting the note for $5. Third, that the mistake in the signature of the note, did not avoid the note if they believed the note was executed, and delivered by John McMickle, and that the Mc was omitted by fraud or mistake. Fourth, that if they believed that both parties knew they were contracting for the note which was left at Dr. Bennet's, that said note satisfied the contract, although they may have called it by a wrong name. To the instructions thus given, the plaintiff excepted. He also excepted to the opinion of the court in allowing evidence to be given of an offer made by the defendant to restore the horse. The first instruction given by the court, was in itself very correct; but it does not correspond with that requested. Perkins had received Fenton's horse, and Fenton had received his note for five dollars, and there was a conversation about the delivery of another note. But it seems there is a difference of opinion (and possibly a difference of opinion between the parties) about the particulars of this conversation. It is then the duty and particular province of the jury to ascertain from the evidence the particulars of such conversation, and by giving to them a plain and fair construction, to ascertain what a man of common sense would have judged to be the agreement of the parties, without regard to the opinions and belief, or to the pretended opinions of the one ...