Lee v. David

• Decision Date: 31 October 1847
• Citation: 11 Mo. 114
• Parties: LEE ET AL. v. DAVID.
• Court: Missouri Supreme Court

11 Mo. 114

LEE ET AL.

v.DAVID.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

CARROLL, for Appellants.

SPALDING & TIFFANY, for Appellee.

MCBRIDE, J.

This was an action of assumpsit brought by the plaintiffs against the defendant in the Common Pleas Court of St. Louis. The declaration contained the common counts. Plea, the general issue, with a notice of set-off. On the trial, the plaintiffs took a non-suit with lee to move to set the same aside, which they subsequently did, when the court over ruled the motion, to which they excepted and appealed to this court.

The bill of exceptions contains all the evidence given in the Circuit Court, and consists of two depositions of one John Philips. The first deposition, not relating to the question raised in the instruction of the court, will not be further noticed. In the second deposition Philips states in substance that, being indebted to the plaintiffs, by note, he had a settlement in the store of the defendant, and paid the plaintiffs some money, and executed to them a new note for $300, which was left with the defendant for collection. That some time thereafter, defendant called on witness and informed him that he held the note for collection, when witness paid $100, which was credited on the note Two or three months afterwards, either the defendant or his clerk, B. T. David, called on the witness in the street for the balance of the note, saying that Lee had gone up the river and wanted it on his return. He paid $100 that evening to the clerk of the defendant and saw him indorse the credit on the note. In a few days thereafter, he paid to the clerk the balance, $125, of the note and interest, and took up his note. That the clerk to whom he made the payments was doing business in the defendant's store as clerk. That three or four years after the payments last named, witness received letters from both plaintiffs and defendant inquiring of him concerning the transaction which he answered by saying that he had paid a part of the notes to the Lees and a part to the Davids.

The court thereupon instructed the jury as follows: If the jury find from the evidence that the plaintiffs left the note against Philips with the defendant for collection, they were bound to demand payment of the sum collected before they can maintain an action therefor; no such demand having been proved, the jury are bound to find for the defendant.

No principle is better settled than that embraced in...