Ham v. Barret

• Decision Date: 31 March 1859
• Citation: 28 Mo. 388
• Parties: HAM, Respondent, v. BARRET, Appellant.
• Court: Missouri Supreme Court

28 Mo. 388

HAM, Respondent,

v.BARRET, Appellant.

Supreme Court of Missouri.

March Term, 1859.

1. Where a presumption is one of fact merely, a court is not warranted in declaring it to the jury as a presumption raised by law.

2. The presumption of the payment of a debt, arising from the fact that a subsequent demand due on the same account and arising from the same cause has been regularly discharged, is a presumption of fact.

Appeal from St. Louis Court of Common Pleas.

This was an action on a negotiable promissory note for $500, dated December 15, 1852, drawn by Miron Leslie, and endorsed by the defendant Barret and discounted by the firm of Page & Bacon for said Leslie. Said note was transferred to the plaintiff, Ham, long after maturity. The defence relied on was payment. There was evidence tending to show that in July, 1854, Page and Bacon and M. Leslie had a general settlement of their business transactions and passed receipts. The plaintiff introduced in evidence a receipt dated July 8, 1854, signed by Leslie in the name of the firm of Leslie & Barret, (of which defendant was a member), acknowledging the payment in full of $500 for professional services rendered Page & Bacon. The case was submitted to the jury upon the following instruction: “If the jury believe from the evidence that the note sued on was paid to Page & Bacon before it was transferred to the plaintiff, they will find for the defendant; otherwise, they will find for the plaintiff.” The court refused the following among other instructions asked by the defendant: “2. If the jury believe from the evidence that Page & Bacon paid to Leslie the sum of $500 after the note sued on became due, it affords a presumption that the note in controversy was fully discharged by them. 3. If the jury believe from the evidence that Page & Bacon, after the note in controversy became due and whilst it remained their property, paid to Leslie the sum of $500, and that Bacon afterwards stated to the witness Haskell that all accounts between the firm of Page & Bacon and said Leslie were fully settled, it is such presumptive evidence of payment by Leslie as will authorize a verdict for defendant.”

The jury found for plaintiff.

H. M. Jones, for appellant.

N. D. & G. P. Strong, for respondent.

SCOTT, Judge, delivered the opinion of the court.

This was an action against Barret as endorser of a negotiable note; plea, payment.

We have nothing to do with the question whether the evidence was or was not sufficient...