Filley v. Talbott

• Citation: 18 Mo. 416
• Court: United States State Supreme Court of Missouri
• Decision Date: 31 July 1853
• Parties: E. A. & S. R. FILLEY, Appellants, v. TALBOTT, Respondent.

18 Mo. 416

E. A. & S. R. FILLEY, Appellants,

v.TALBOTT, Respondent.

Supreme Court of Missouri.

July Term, 1853.

1. Where a witness has been permitted to speak of the contents of a writing, without having it present or accounting for its absence, the court should exclude such evidence from the jury, if it is objected to while the witness it still testifying.

2. Where a plaintiff has recovered judgment before a justice of the peace, and on appeal to the Circuit Court, has judgment for a less sum, it is error to adjudge the whole costs against him. The statute only makes him liable for the costs of the appellate court.

Appeal from Clay Circuit Court.

This was a suit begun by E. A. & S. R. Filley, the appellants, against Lawson A. Talbott, the respondent, before a justice of the peace Clay county, upon a note for eighty-eight dollars and seventy-five cents, dated October 11th, 1850, and payable two months after date. The plaintiffs recovered judgment before the justice for twenty dollars and four cents and their costs, from which they appealed to the Circuit Court. Upon a trial de novo in that court, the plaintiffs read in evidence the note sued upon and rested their case. By consent of plaintiffs, the defendant then read in evidence an account of queensware bought by him of them, showing a balance, after deducting credits, of $88.75 due plaintiffs, which they admitted to be the balance for which the note was given.

The defendant then introduced Fielding Huggins, as a witness who testified substantially, that one of the plaintiffs, in conversation with him, at their place of business in St. Louis, told him that the above account had been made out by one of the clerks and that the clerk had made a mistake in extending the items, and requested witness to say to Mr Talbott, that he (Filley) would correct the mistake, if he (Talbott) would call on him, when he next came down to St. Louis.

The defendant then introduced John Porter, as a witness, who stated that he had examined the account referred to above, and had compared it with a bill of queensware purchased by Messrs. Vanosdell & McCoun of plaintiffs, and that, so far as the bills related to similar articles, they were charged from forty to fifty per cent. higher in Talbott's bill, than in Vanosdell & McCoun's. After this witness had given his testimony, and while he was testifying in relation to the prices of some of the items in Talbott's bill, plaintiffs objected to his testimony in regard to the Vanosdell & McCoun bill, for the reason that the bill itself should be produced; but the court overruled the objection, assigning as a reson that it came too late.

The defendant then introduced David Roberts, who testified that he had examined the account given in evidence, and found some of the articles charged at prices from thirty to forty per cent. higher than those at which he had purchased the same descriptions of articles in St. Louis.

The jury found a verdict for the plaintiffs for the sum of nine dollars and fifty cents. The court rendered judgment for this amount and also for the costs of this suit. The plaintiffs filed their motions for a new trial and in arrest of judgment, which being overruled, they excepted and appealed to this court.

Parsons, for appellants.

I. There was no evidence to warrant the finding. The respondent, having accepted and closed the sale, at the prices specified in the account, by paying part of the account and executing his note for the balance, was estopped from setting up the alleged high prices, as a defense.

II. There is no evidence of any mistake in the account. It was offered in evidence by the respondent and he is bound by it. An inspection of it shows that there is no mistake in it, and...