Irvin v. Riddlesburger

• Decision Date: 31 January 1860
• Parties: IRVIN, Respondent, v. RIDDLESBURGER, Appellant.
• Court: Missouri Supreme Court

29 Mo. 340

IRVIN, Respondent,

v.RIDDLESBURGER, Appellant.

Supreme Court of Missouri.

January Term, 1860.

1. A. sued B. to recover the value of carpentry work done for the latter; B. in his answer set up that the alleged work was done in so unworkmanlike a manner as to be valueless, and claimed by way of counter claim the sum of six hundred and four dollars that he had advanced to A. during the progress of the work, and that was allowed as a credit in the account filed with plaintiff's petition; to this counter claim no reply was filed. The court, at B.'s instance, instructed the jury that if the six hundred and four dollars advanced by B. was more than the work done was worth, they should “find for defendant whatever amount they may consider said work worth less than said sum.” The jury found for plaintiff the balance claimed to be due him. Held, that the defendant was not, under the circumstances, aggrieved by the refusal of the court to instruct the jury that the allegations of the answer with respect to the set-off or counter claim were admitted by the pleadings to be true, there being no reply thereto.

2. The supreme court will not grant new trials on the ground that the verdicts of juries are against the weight of evidence.

Appeal from Kansas City Court of Common Pleas.

The facts sufficiently appear in the opinion of the court.

Ryland & Son, Chrisman & Comingo, for appellant.

Smith & Bouton, for respondent.

NAPTON, Judge, delivered the opinion of the court.

There are two grounds upon which it has been urged that this judgment ought to be reversed. The first is, that the court refused to give the third instruction asked by the defendant, which, in substance, declared to the jury that, as the defendant's counter claim for six hundred and four dollars was not replied to, they would consider it as admitted and render their verdict accordingly. The other ground relied on is that the verdict is against the evidence.

In relation to the first point, it seems to us that a concession of the propriety of this instruction would not lead to a reversal of the judgment. Admitting that the defendant's answer contained new matter constituting a counter claim, within the meaning of the fifteenth section of the sixth article of the practice act, (R. C. 1855, p. 1238,) and that the plaintiff's failure to reply brought the case within the sixteenth section of the same article, yet it could certainly tend to no good purpose, under the circumstances of this case, to send the case back to have this error corrected. The jury passed upon the counter claim under instructions from the court and rejected it. The case was tried precisely as though a replication had been put in.

The plaintiff's bill of particulars gave the defendant credit for the six hundred and four dollars which he claimed to have advanced on the work as it progressed, and the jury allowed the same as a credit; but as they allowed the bill, after deducting the credit, they of course found against the counter claim. The counter claim set up that the work was so badly...