Jarrett v. Morton

• Decision Date: 31 July 1869
• Citation: 44 Mo. 275
• Parties: H. R. JARRETT, Plaintiff in Error, v. J. F. MORTON, Defendant in Error.
• Court: Missouri Supreme Court

44 Mo. 275

H. R. JARRETT, Plaintiff in Error,

v.J. F. MORTON, Defendant in Error.

Supreme Court of Missouri.

July Term, 1869.

Error to Third District Court.

T. A. Sherwood, for plaintiff in error, relied, among others, upon the following authorities: State v. Harrold, 38 Mo. 496; State, to use, etc., v. Smith, 31 Mo. 566; State v. Wissmark et al., 36 Mo. 592; Young v. White, 18 Mo. 93; Beale v. Cullum, 31 Mo. 258; Bay v. Sullivan, 30 Mo. 191; Gonsolis v. Gearhart, 31 Mo. 585.

McAfee & Phelps, for defendant in error, relied upon the following authorities: 2 Pars. on Cont., 5th ed., 780-2; Moyer v. Shoemaker, 5 Barb. 319; Matteawan Co. v. Bentley et al., 13 Barb. 641; Wheaton v. Baker, 14 Barb. 594; Masson v. Bovet, 1 Den. 69; Hogan v. Weyer, 5 Hill. 389; Chit. on Cont. 646, 748; 1 Greenl. Ev. § 192.

BLISS, Judge, delivered the opinion of the court.

The plaintiff brings his quantum meruit to recover for the services of a slave who was taken by the defendant, in January, 1862, from Greene county to Arkansas, and returned with him in 1864. The plaintiff recovered $20 in the Springfield Common Pleas, and the judgment was reversed in the District Court. The only matters complained of, or that can be considered, arise from the charge to the jury upon the trial below.

There were two defenses. First, that the services were worth nothing; and, second, an accord and satisfaction. The plaintiff had frequently demanded of the defendant payment for the services, and the latter uniformly disclaimed any indebtedness; but finally the plaintiff told him if he would give him a certain promissory note held by defendant against one Reynolds, upon which plaintiff was security, he would “square off.” Defendant gave him the note, which he put in his pocket without examination. The note was for $90, with indorsements, so that only about $50 were due upon it, which amount plaintiff collected. The plaintiff claims that there was no accord and satisfaction, for the reason that defendant deceived him in regard to the note, having induced him to believe that it was given for $125, and had been on interest for several years. The deception upon which he relied occurred some two years before, when he was endeavoring to buy the slave he afterward took to Arkansas. The plaintiff testifies that defendant then offered the note, among other things, in payment, and represented that it was given as above; and that, when he agreed to take it in satisfaction of his claim, he supposed there were nearly $200 due on it.

The defendant complains of the following instruction given on behalf of the plaintiff, to-wit: “7th. That although the jury may believe from the evidence that the plaintiff received from the defendant a note for $50, and applied the same to his own use, yet if the jury also believe from the evidence that plaintiff received said note by mistake, and through deception and fraud of the defendant, they will not regard the reception of said note as a compromise and settlement, although plaintiff never returned or offered to return said note.”

The same point is raised in the following instruction, asked by defendant and refused: “3d. That if plaintiff had been previously misled by defendant as to the amount due on said note, or was mistaken as to the amount due on said note, at the time he accepted the same for the services of the said Wyatt, yet, after discovering the mistake or misrepresentation, did not return or offer to return said note to defendant, but collected the same for his own use, the jury will find for defendant.'

The giving of the above instruction,...