First Nat. Bank v. Hatch

• Decision Date: 10 June 1889
• Citation: 11 S.W. 739,98 Mo. 376
• Parties: FIRST NAT. BANK v. HATCH.
• Court: Missouri Supreme Court

11 S.W. 739

98 Mo. 376

FIRST NAT. BANK v. HATCH.

Supreme Court of Missouri.

June 10, 1889.

INSTRUCTIONS.

1. The assumption of a fact in an instruction, as proven, is not reversible error where the only witness speaking on the subject testified to such fact, and there was no controverting evidence.

2. A judgment will not be reversed for the reason that the court instructed the jury on hypothetical facts stated to find for one party, without direct reference in each instruction to the case presented on the issues by the instructions for the other party, in which they are in like manner directed to find for the latter, if the instructions as a whole present harmoniously and consistently the respective theories of the parties.

Appeal from circuit court, Livingston county.

Action by the First National Bank of Burlington against Henry Hatch as indorser of a foreign bill of exchange, drawn by the Burlington & Southwestern Railway Company on Elijah Smith, who refused to honor it. The bill was indorsed by defendant to plaintiff for the sum of $8,000, which was paid at the time of indorsement and delivery to plaintiff. The answer was a general denial. Judgment was for defendant, which was reversed on writ of error, and on second trial plaintiff recovered. Defendant appeals.

H. C. McDougal, Prosser Ray, and E. J. Broaddus, for appellant. W. C. & J. W. Samuel and L. A. Chapman, for respondent.

BRACE, J.

This case is here for the second time. A sufficient statement appears in the opinion heretofore delivered, in 78 Mo. 13.¹ Upon the retrial the defendant filed an amended answer, in which, after admitting that the draft was drawn and indorsed as charged, he denied all the other allegations of the petition, and then set up three special defenses, upon which the plaintiff joined issue. The court gave a series of instructions for the plaintiff and for the defendant. These instructions are counterparts of each other, except one for the plaintiff on the third special plea set out in the answer, on which the court refused to give an instruction asked for by the defendant. It is not complained that the court committed error in refusing defendant's instruction, or in declaring the law in the one given for the plaintiff on that plea, but that it assumed a fact, i. e., that a certain payment was of the costs in a suit. Conceding that the instruction is susceptible of that construction, the evidence on that question of fact is uncontradicted. The only witness who...