Huntsman v. Rutherford

• Decision Date: 31 July 1850
• Citation: 13 Mo. 465
• Parties: HUNTSMAN v. RUTHERFORD ET AL.
• Court: Missouri Supreme Court

13 Mo. 465

HUNTSMAN

v.RUTHERFORD ET AL.

Supreme Court of Missouri.

July Term, 1850.

ERROR TO RANDOLPH CIRCUIT COURT.

The plaintiff in error instituted a suit before a justice of the peace, in Randolph county, against the defendants, and obtained a judgment for about four dollars, from which the defendants took an appeal to the Circuit Court. In the Circuit Court the defendants obtained a judgment, and the plaintiff has brought the case here by writ of error. The facts of the case, preserved in the bill of exceptions, seems to be in substance, that the plaintiff sued upon a note that the defendants claimed to have paid off before the commencement of the suit, and also filed before the justice an offset for various articles furnished the plaintiff. There is a large amount of evidence relating to the offset and payments made on the note sued upon; and also evidence tending to show a statement between the parties, and that, in that settlement, the balance was struck and the note given. There is also evidence, that at the time of the settlement, interest was calculated on a previous debt due the plaintiff from the defendant, at twenty-five per centum per annum, and that such interest, at that rate thus calculated, was added into and formed a part of the note sued on in this case. The evidence in the case is too voluminous to be incorporated in this statement, but by reference to the bill of exceptions, it will be seen to embrace the above points of inquiry. Upon the above state of evidence, the plaintiff moved several instructions, all of which were refused but one, which was overlooked by the court, and was neither given nor refused, but the principle contained in it was advanced to the jury, by the plaintiff's counsel, by permission of the court. The court gave the jury one instruction for the defendants in the following words: “If the jury believe from the evidence, that the defendants have paid plaintiff all the principal and legal interest on the contract, and that the note was executed for a balance on said land, they will find for the defendant, notwithstanding there may be a balance on said note.”

PREWITT, for Plaintiffs. The land was not originally purchased for the defendants, or either of them, or at their request. Plaintiff had a right to adopt any mode of calculation he pleased to ascertain what he would sell the land at. He did not sell them the land until the note was given; they were not bound to pay him any money until then, and consequently there could have been no forbearance on which usury would arise. The first and second instructions asked by plaintiff, were justified by the evidence, and ought to have been given. The third and fourth ought certainly to have been given, for they stated the law hypothetically on a case which the evidence authorized to be put to the issue. The instruction...