Hunter v. Helsley

• Decision Date: 06 April 1903
• Parties: HUNTER v. HELSLEY.
• Court: Missouri Court of Appeals

73 S.W. 719

98 Mo. App. 616

HUNTER v. HELSLEY.

Court of Appeals at Kansas City, Missiuri.

April 6, 1903.

EVIDENCE — COMPROMISE — ASCERTAINMENT OF LIABILITY—WAIVER OF OBJECTION—EXPERT TESTIMONY—QUALIFICATION—EXPRESSION OF OPINION—APPEAL—JUSTICE COURT —FAILURE TO PLEAD COUNTERCLAIM.

1. Under the express provisions of Rev. St. 1899, §§ 3852, 4078, in an action before a justice, defendant must, before trial, file a statement of his set-off or counterclaim, or he cannot avail himself thereof on appeal and new trial in the circuit court.

2. Evidence, in an action to recover freight under a contract providing that in payment for a farm defendant was to take a stock of merchandise at cost "and freight added," considered, and held sufficient to show that plaintiff had paid freight charges for merchandise shipped to defendant under the contract.

3. Evidence of the ascertainment by plaintiff and defendant of the amount of freight due under a contract, made for the purpose of determining what was actually due, and not to effect a compromise, was properly admitted.

4. Defendant, who objected to evidence of a certain transaction, but in his own evidence went fully into the details thereof, could not predicate error on the overruling of his objection.

5. Evidence by plaintiff, who was a merchant accustomed to handling shoes, of what in his judgment a cargo of shoes purchased by him would weigh, was admissible as expert testimony, although he had testified that he had never actually weighed a box of shoes.

6. It is for the court to determine whether testimony given by an expert as to what he "expects" or "guesses" to be the case expresses his judgment.

Appeal from Circuit Court, Benton County; W. W. Graves, Judge.

Action by J. M. Hunter against George E. Helsley. From a judgment for plaintiff, defendant appeals. Affirmed.

Lay & Lay, for appellant. W. S. Jackson, for respondent.

SMITH, P. J.

The plaintiff and defendant entered into a written contract by which plaintiff agreed to take from defendant a farm valued at $18,000, and to give in exchange therefor certain other real estate valued at $4,600, and also a stock of merchandise, the latter "at cost and freight added." The transaction to which the contract related was completed, except the plaintiff insisted that the defendant had refused to pay him the freight on said stock of merchandise, as he had bound himself to do; and, based upon this alleged breach of the contract, this action was begun before a justice of the peace to recover the amount of freight so claimed.

In the circuit court, where the cause was removed by appeal, there was a trial by a jury, whose verdict, under instructions impliedly admitted to have been correct in expression, was for the plaintiff.

It is conceded that the contract heretofore referred to was entered into, and that the defendant has paid nothing for freight on said stock of merchandise. The defendant, in effect, admits his liability to the plaintiff under said contract, but contends that under some oral agreement entered into between the plaintiff and himself the plaintiff is indebted to him (defendant) for the discount which he (plaintiff) received on the cost price of goods, by reason of paying cash therefor, in an amount equal to that for which plaintiff sued.

No statement of any set-off or counterclaim was filed before the justice, as required by sections 3852, 4078, Rev. St., and therefore that defense was not available in the trial court. McCormick v. Crawford (just decided by us) 72 S. W. 491; West v. Freeman, 76 Mo. App. 96; Stephens v. Supply Co., 67 Mo. App. 589; Gantt v. Duffy, 71 Mo. App. 93. And, besides this, the abstract nowhere discloses any evidence whatever which in the least tends to prove that the plaintiff ever received any discount whatever on any purchase of goods, so that the defendant's defense was wholly unproved. Whether such a defense was submitted by the instructions to the jury does not appear, the instructions not being preserved by the bill of exceptions, nor is it material to inquire.

It is no doubt true that the admission implied by the nature of the defense interposed by the defendant did not bind him, and therefore the question remains whether or not the plaintiff adduced sufficient evidence to support the verdict. The obligation imposed on defendant by the contract to pay plaintiff, as a part of the purchase price of the goods, the amount of his outlay for the freight, or the cost of carriage thereon, from the place of purchase to that where the sale was made, is...