Gibson v. Hanna

• Decision Date: 31 July 1848
• Parties: GIBSON v. HANNA.
• Court: Missouri Supreme Court

12 Mo. 162

GIBSON

v.HANNA.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM COOPER CIRCUIT COURT.

HAYDEN, for Appellant.

1st. That the Circuit Court erred in permitting the plaintiff to give to the jury upon the trial of the cause, as explanatory of the receipts read in evidence by defendant, the testimony of Thomas Hanna, and the three accounts referred to by the witness, marked A. B. and C., and the said note with the indorsements made by Gibson thereon as read by plaintiff. 2nd. That the court erred in giving to the jury the said first instruction asked for by plaintiff and objected to by defendant. 3rd. That the court erred in not setting aside the verdict and in refusing defendant a new trial upon his motion therefor.

ADAMS, for Appellee. To sustain the judgment of the Circuit Court the appellee will insist upon the following points and authorities: That the receipts read in evidence by the defendant below were only prima facie evidence that the account sued upon had been settled and they were subject to explanation. Ensign v. Webster, 1 Johns. Ca. 145; House v. Low, 2 Johns. 378; Toby v. Baber, 5 Johns. 68; McKinstry v. Pearsall, 3 Johns. 319; Johnson v. Weed, 9 Johns. 310; Putnam v. Lewis, 8 Johns. 389; Shepherd v. Little, 14 Johns. 210; 2 Tenn. R. 866; Gerrish v. Washburn, 9 Pick. 388; Badger v. Jones, 12 Pick. 371; Baugh v. Brassfield, 5 J. J. Marsh. 79; Southwick v. Hayden, 7 Cowen, 334; 1 Greenl. Ev. § 305, et passim.

SCOTT, J.

This was an action begun in a justice's court on a blacksmith's account by the appellee against the appellant, in which the appellee recovered judgment. On a trial in the Circuit Court the appellee again obtained a verdict which was set aside and new trial granted. On a second trial in the Circuit Court, the appellee succeeded in obtaining a verdict for $82 92 debt and $27 87 damages, on which a judgment was rendered, from which the appellant has appealed to this court. The appellee's account amounted to $116 62 on which there was a credit indorsed of $33 33, being the interest up to June, 1845, on a note for $100 at ten per cent., held by the appellant against the appellee. The account commenced in August, 1841, and was continued down to April, 1846. Evidence was given tending to establish the account. The appellant then read three receipts from the appellee, dated respectively 16th August, 1843, March 7th, 1845 and November 9th, 1845, and severally for the sums of $11 42, $29 62 and $5 71. These receipts were in full of all demands up to their respective dates. A tender of payment of the two items of the account of a date subsequent to that of the last receipt, was admitted. The appellee then, to explain said receipts, introduced a witness who testified that the appellee was a blacksmith, that he, witness, kept the appellee's books, and most of the entries were in his hand-writing; that on the books there were accounts corresponding in amount with the receipts read in evidence; that the accounts corresponding in amount with the first two receipts in point of date, are included in the amount sued on. Witness further stated that he knew of no payments being made on said accounts. It appears that the accounts were credited by payments on the book. The appellee also read in evidence a negotiable promissory note for $100 given by appellee to appellant, which is as follows:

“Seven months after date we or either of us promise to pay William Gibson or order the sum of $100 for value received, negotiable and payable without defalcation or discount, with interest after due at the rate of ten per cent. per annum until paid, this 3rd August, 1841.

ISAIAH HANNA,

ELI C. HAMMOND.”

On which note were indorsements of the payment of interest up to the 1st November, 1842 and 1st June, 1845. This note was afterwards, in November, assigned to J. Kingsbury, who sued for and collected the same. The explanatory evidence was objected to by the appellant.

The court, at the instance of the appellee, gave the following instruction, which was excepted to by the appellant, viz: that not withstanding the plaintiff may have given the receipts read in evidence, yet they are only prima facie evidence that the account was settled in full, and may be explained, and if the jury believe from the evidence that the account sued upon, or any part thereof, remains unpaid, they must find for the plaintiff.

I do not see how this verdict...