Jones v. Jones

• Decision Date: 31 July 1874
• Citation: 57 Mo. 138
• Parties: I. J. JONES Defendant in Error, v. ELIJAH JONES, Plaintiff in Error.
• Court: Missouri Supreme Court

57 Mo. 138

I. J. JONES Defendant in Error,

v.ELIJAH JONES, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1874.

Error to Osage Circuit Court.

Lay & Belch, for Defendant in Error.

Ewing & Smith, for Plaintiff in Error.

NAPTON, Judge, delivered the opinion of the court.

This suit was brought in 1869, by a son against his father, to recover an alleged indebtedness of the latter to the former, growing out of a series of transactions between them, commencing in 1859, and continuing to 1863.

The petition, in substance, alleges that the plaintiff owed the defendant about $3000, and gave his note to defendant for that sum with interest--and then proceeds to aver payments at various times; first, by a note from James N. Jones, a brother of plaintiff, made payable to defendant in 1860, for $985, which note was procured--as alleged by the plaintiff--and accepted by the defendant, as a payment on his, the plaintiff's note; second, by a transfer to defendant of a claim against said James N. Jones' estate, for $200; third, by the transfer of certain promissory notes of one Wakefield, amounting to $375, payable to defendant, and agreed to be credited on said note of plaintiff; fourth, by the value of a carding machine, alleged in the petition to have been converted to defendant's use, and which is put down at $1000; and fifth, by collecting claims or notes of plaintiff, to the amount of $4000, principally on one Johnson.

And the plaintiff claims, as the result of this account, an indebtedness of defendant, to him of $3,500.

The defendant in his answer, insists that the plaintiff owed him in 1860 about $4000; insists that he received the note of James N. Jones as collateral, and avers that he never collected a cent on said note--ignores the indebtedness of said James N. Jones' estate to plaintiff in the sum of $200, and denies that he received such transfer of said asserted claim as part payment to him--denies that he received the notes of Wakefield as payment, and says they never were paid--admits that the carding machine was transferred to him, but denies the value asserted in the petition. The answer denies the collection of $4000 for plaintiff.

The testimony in the case is reported in a bill of exceptions, which it is difficult to decipher; but as the main points in it have a bearing on the instructions given, and a suit of this sort is somewhat of a novelty, I have endeavored to gather the material facts appearing.

The plaintiff and defendant, father and son, are the principal witnesses.

The plaintiff, the son, states that in 1860 he owed his father about $3000; that he paid it all off; that in 1863 he sold Wm. Johnson a tract of land; that in that year his brother, Jas. A. Jones, who lived in Texas county, owed him $985; that he further agreed to take this note and credit him with the amount; that his father also agreed to take Wakefield's notes for $375, and gave him credit for that sum; that his brother, J. A. Jones, died in 1861, owing him about $200; that his father administered on the estate, and that his father and Wm. Johnson and himself, went to Texas county to look into this matter, and his father thought the estate would pay nothing, and therefore, the credit of $985 could hardly be allowed. However, his father ultimately agreed to allow this $985 and the $200 claim; but in 1862, hearing that he reached a different conclusion, the plaintiff went to his house and claimed a credit of $985 and $200 and $375 on Wakefield, which he refused to allow. The plaintiff then, as he says, sold his farm, and leased some property to Johnson for $4000, and he offered his father Johnson's note for the $4000 to pay up. His father said that would overpay him, but he would take it. He accordingly handed over Johnson's notes and lifted his notes.

The defendant, the father, stated that in 1854 he loaned the plaintiff and another son of his $900; they were in partnership at Stonery Point; that they got, between 1854 and 1859, 100 bushels of corn at 50 cents per bushel, a mare worth $60,pork,oxen and 1200 lbs bacon; that in 1857 they got $1500 in gold; that they owed him $3,500 or $3,600 when he took plaintiff's notes. The firm was dissolved in about a year. He took plaintiff's notes about 1858 for $3,500, bearing ten per cent. interest. In 1857 he received a note of James A. Jones to him, for $987, which his son, the plaintiff, desired him to take, and he did so. He received the Wakefield notes in 1857. He also got four notes on Johnson, for $1000 each, to be paid in pine lumber. The James A. Jones note was never paid; he never heard of the account against his estate for $200. He received the Wakefield notes as payment. In 1863 his son prepared a settlement. After final settlement, this witness states, he (plaintiff) borrowed $300, and he kept this till it amounted to $460.50, and then it was settled. He afterwards borrowed $150 of witness, and his wife gave her note. He never claimed that plaintiff owed him anything.

This witness, who is the father of plaintiff, then states, “I stated that the Johnson notes overpaid the principal of Irwin's indebtedness to me, but not the interest....