Little v. Nelson

• Decision Date: 31 July 1844
• Citation: 8 Mo. 709
• Parties: LITTLE & NOECKER v. NELSON.
• Court: Missouri Supreme Court

8 Mo. 709

LITTLE & NOECKER

v.NELSON.

Supreme Court of Missouri.

July Term, 1844.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

PRIMM and TAYLOR, for Appellants. 1. It is respectfully submitted, that the St. Louis Court of Common Pleas committed error in overruling the appellants' motion for a new trial, for the reasons embodied in that motion, applying the law to the facts contained in the record. 2 Where a note is made by a tradesman, payable in clothing or specific articles, and the same does not express the time or place of payment, it is obligatory on the payee to make a demand for the same, at the place of business of the tradesman or payor, before he can convert his demand into money, and then only when he shows, on the trial, that a refusal attended such demand--the onus probandi being on the payee. See Chapman on Contracts, p. 28, and following; Martin v. Chauvin, 7 Mo. R. 277; Cornelius v. McDonald, 2 Mo. R. 55, and authorities therein cited, and Welmouth v. Patten, 2 Bibb, 280. 3. If the debtor be ready, at the time and place, to deliver the thing he has promised to give, and the creditor does not appear to receive the same, the contract or debt is completely discharged as by a tender of the thing due. Chapman on Contracts, p. 137 and following, and authorities there cited. 4. There was no sufficient property vested in the creditor from his selecting the cloth and ordering the debtor to make the same up into clothing, to enable the creditor to maintain trover against the debtor, without a demand for the same, and this in person, or by competent agent; a fortiori, he could not maintain this action. Chitty's Pl. 5. There is no sufficient statement or cause of action to be found in the record, nor is there any foundation upon which the court could legally enter up judgment.

B. F. HICKMAN, for Appellee. The finding of the court (sitting as a jury), was in accordance with the evidence, and therefore the Court of Common Pleas did not err in overruling the motion for a new trial, upon the grounds filed. 4 Mo. R. 518. The order upon which this suit is brought was given for $50 in clothing, was accepted by the defendants below, who failed to furnish the clothing, and therefore they became liable for the money, and the Court of Common Pleas committed no error in refusing to arrest the judgment for the reasons assigned. 6 Mo. R. 250.

TOMPKINS, J.

This was an action commenced by Thomas Nelson, before a justice of the peace, against Little and Noecker. Before...