Given v. Corse

• Decision Date: 04 January 1886
• Citation: 20 Mo.App. 132
• Parties: C. W. GIVEN, Appellant, v. ARTHUR CORSE, Respondent.
• Court: Kansas Court of Appeals

20 Mo.App. 132

C. W. GIVEN, Appellant, v. ARTHUR CORSE, Respondent.

Court of Appeals of Missouri, Kansas City.

January 4, 1886

APPEAL from Maries Circuit Court, HON. A. J. SEAY, Judge.

Affirmed.

Statement of case by the court.

This suit was brought before a justice of the peace upon an ordinary account. The defendant filed the following set-off:

" Now comes the defendant and for offset and counter-claim to plaintiff's demand, states: that on the sixteenth day of April, 1879, one E. Keogle recovered against the plaintiff a judgment in the circuit court of Maries county for $39.90, and that said judgment was assigned for value to this defendant, A. Corse, on said sixteenth day of April, 1879, and that on the twenty-sixth day of February 1880, execution on said judgment in favor of and to the use of A. Corse was issued by the clerk of said circuit court against C. W. Given, and delivered to the sheriff of Maries county; that on the ______ day of ______, 1880, and more than twenty days prior to the April term, 1880, of the Maries circuit court, and when the said sheriff of Maries county was about to levy on the property of Given to satisfy said execution, the said C. W. Given promised to pay to A. Corse said execution sum of $39.90 and interest, on the first day of the ensuing April term, 1880, of the said circuit court if said A. Corse would cause said execution to be returned not satisfied, provided said execution could not be stayed on or before the first day of said April term, 1880, and on said promise said A. Corse then and there caused said execution to be returned not satisfied. That said execution was not stayed by the supreme court or any other court on or before the first day of said April term, 1880, nor was it stayed by any court at any time during said April term, 1880. That said Given did not then pay off said execution nor said $39.90 to this defendant, nor is the same yet paid; that said Given owes by reason of said promise the said $39.90 and interest thereon from April 1, 1880, for which defendant asks judgment."

The defendant had judgment before the justice. Upon a trial in the circuit court, an appeal having been taken by the plaintiff, the defendant introduced evidence tending to prove the allegations contained in this set-off. The plaintiff introduced evidence tending to contradict these allegations and also introduced in evidence from the records of the Maries circuit court the following:

" In vacation, April 29, 1880.

ERHARDT KEOGEL

)

v. ) Appeal from J. P.

C. W. GIVEN. )

Writ of error with order of supersedeas endorsed thereon and bond of C. W. Given for two hundred dollars, with J. A. Love and George Lindner as his securities, which has heretofore been approved by the judge of this court, presented and exhibited to me, and further proceedings stayed in this cause until disposed of by the supreme court of this state."

The court gave the following instruction for the defendant:

" The court instructs the jury that if defendant and plaintiff mutually agreed that defendant should order the execution in evidence returned unsatisfied and that in consideration of such order and return, plaintiff would pay him the full amount due upon said execution on the first day of the April term, 1880, of the Maries circuit court, in case plaintiff did not secure a stay of said execution by that time, and if they further believe that defendant did order said execution returned unsatisfied, and that it so was returned, and that defendant did not secure a stay of said execution on or before the first day of said April term, 1880, and that plaintiff has not paid to said defendant the amount of said judgment or any part thereof, then the jury will find for the defendant, and assess his damages at the sum of $35.49, with six per cent. interest thereon from April 16, 1879."

The plaintiff asked and the court refused to give various instructions. It is unnecessary for us to set out those various instructions herein, because if the court properly gave the above instructions for the defendant it also properly refused to give those asked by the plaintiff.

EDWIN SILVER, for the appellant.

I. Nemo debet bis vescari pro una et eadem causa.

II. There was no consideration for the promise not to make the levy. Union Bk. v. Govan, 10 Sm. and Ml. (Miss.) 333; Hunt v. Johnson, 23 Mo. 432; Russel v. Buck, 11 Vt. 166.

III. In any event the measure of damages, under the evidence, in this case, could not be the full sum for which the execution was issued.

IV. When the case was tried in the circuit court on the appeal from the justice, a stay of execution had been awarded from the supreme court upon the judgment. This suspended the judgment in that case. See this same case, 79 Mo. 77. The judgment in the appeal case (before the justice) was vacated and the cause tried de novo (Turner v. Northcot, 9 Mo. 249, and 78 Mo. 49), and we have the defendant offering in evidence on the trial of the appeal (in the circuit court) and claiming judgment on a promise to pay an execution issued on a suspended judgment. He could not do this.

V. The court erred in not sustaining the motion in arrest of judgment.

No brief on file for the respondent.

HALL J.

I.

The plaintiff urges that the agreement set up in the set-off is a nudum pactum, being without consideration. And the question thus presented as to whether or not there was any consideration upon which to base that agreement is the principal question in this case.

It is laid down by Parsons that " in general, a waiver of any legal...