M'Cutchin v. Batterton

• Decision Date: 30 September 1823
• Citation: 1 Mo. 342
• Parties: M'CUTCHIN v. BATTERTON.
• Court: Missouri Supreme Court

1 Mo. 342

M'CUTCHIN

v.BATTERTON.

Supreme Court of Missouri.

September Term, 1823.

PETTIBONE, J.

This was an action of debt upon a single bill obligatory, for $100. The defendant did not appear, and judgment was entered against him by default for the debt in the declaration mentioned, to be discharged by the payment of one cent damages. The bill of exceptions, as well as the entry of the judgment, states that the plaintiff produced no evidence of his debt; or, in other words, that he refused to produce the obligation declared on, and, for that reason, the judgment was entered as above stated, to be discharged by the payment of nominal damages. We are clearly of opinion that the judgment is erroneous. The default was an admission of the debt, as set forth in the declaration, and the plaintiff was not bound to produce any further evidence of his debt, which was thus admitted; nor had the court any authority to say it should be discharged by the payment of a lesser sum.

When the action is for the recovery of damages only, as the amount is considered uncertain, the default admits the plaintiff's right to recover such damages as he has sustained; but as the precise amount cannot be known to the court, a writ of inquiry of damages issues; and if no evidence of the precise amount of damages is then offered, the court or jury are warranted in finding nominal damages only. But the case is different when the action is for a debt. Then the sum is fixed and certain, and is confessed, as set out in the pleadings.^(a) The judgment, therefore, of the court below, so far as it says that the said debt may be discharged by the payment of one cent damages, is reversed, with costs; and the balance of the said judgment, which says that the said plaintiff shall recover of the defendant his debt, in the declaration mentioned, is affirmed; and this court, proceeding to give such further judgment as the court believe ought to have been given, do consider that the plaintiff recover his damages for the detention of his said debt, amounting to ____, being the interest on the said debt since the same became due, as appears from the declaration.

(a). Gen. St. of 1885, p. 650. § 4 et seq.