Glasgow v. Moore

• Citation: 9 Mo. 843
• Parties: GLASGOW & HARRISON v. MOORE & FEAZEL.
• Decision Date: 31 January 1846
• Court: United States State Supreme Court of Missouri

9 Mo. 843

GLASGOW & HARRISON

v.MOORE & FEAZEL.

Supreme Court of Missouri.

January Term, 1846.

ERROR TO CHARITON CIRCUIT COURT.

LEONARD & BAY, for Plaintiffs. The verdict was clearly contrary to the evidence. The account of the plaintiffs was fully proved, and the only evidence on the part of the defendants, was the testimony of Applegate in relation to the rate of exchange. Admitting the rate of exchange to have been as stated by this witness, still there was a balance due to the plaintiffs.

STRINGFELLOW & ABELL, for Defendants. 1. Plaintiffs in error cannot object in this court to any proceedings in the Circuit Court, unless the objections were made, and exceptions saved in the Circuit Court. 2. All the evidence offered by plaintiffs in the Circuit Court, was admitted, and all the instructions asked by them given. 3. The evidence offered by defendants was not objected to in the Circuit Court. 4. The 3rd instruction asked by defendants, and the only one excepted to by the plaintiffs, ought to have been given. Rev. Stat. 1835, title Set-off. 5. The plaintiffs in error cannot, in this case, object to the 3rd instruction. It was given to the jury, who being unable to agree upon a verdict were discharged; the cause then stood as though the jury had never been sworn. The cause then being submitted to the court, no evidence being offered or instructions asked, the court acted more as a referee than a jury. 6. The court, had it been necessary, might well have disregarded much of plaintiff's evidence, as not entitled to credit by its own showing. 7. If the testimony offered by defendants had been objected to, it was legal testimony as going to establish defendants' offsets. 8. If all the instructions and testimony of defendants were excluded, the verdict and judgment must have been for the defendants by the plaintiffs' own showing.

MCBRIDE, J.

The plaintiffs brought their action of assumpsit in the Circuit Court of Chariton county against the defendants, who pleaded non-assumpsit, and gave notice of a set-off under the statute. From the evidence in the cause, as preserved by the bill of exceptions, it appears that Moore & Feazel were largely engaged in Chariton county in the purchase of tobacco, and preparing it for the European markets. Glasgow & Harrison were merchants in St. Louis, and undertook the agency of shipment and sale of the tobacco in Europe, for which service and advancements made on account of the tobacco consigned to them, Moore & Feazel were to pay them. The account upon which the action was brought embraced transactions between the parties for more than twelve months, and amounted to up wards of thirteen thousand dollars. Af...