Mahan v. Waters

• Court: Missouri Supreme Court
• Writing for the Court: HOUGH
• Citation: Mahan v. Waters, 60 Mo. 167 (Mo. 1875)
• Decision Date: 31 May 1875
• Parties: ANDREW MAHAN, et al., Appellants, v. ELMORE WATERS, Respondent.

60 Mo. 167

ANDREW MAHAN, et al., Appellants,

v.ELMORE WATERS, Respondent.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Caldwell Circuit Court.

Dunn & Johnson, for appellants, cited in argument Berthold v. Reyburn, 37 Mo., 586; 2 Pars. Contr., 642, 645, 5th Ed.; 2 Greenl. Ev., 600.

J. M. Hoskinson, for Respondent.

HOUGH, Judge, delivered the opinion of the court.

This was an action brought by the plaintiffs as payees, against the defendant as maker of a promissory note for eighty dollars, dated May 30th, 1872, payable in six months from date, at the Breckenridge Express Office, with ten per cent. interest from maturity, and an attorney's fee of ten per cent., if said note should be placed in the hands of an attorney for collection, by reason of its non-payment.

The defendant alleged in his answer that the consideration of the note was a sewing machine, and an undertaking on the part of the plaintiffs, to instruct some member of the defendant's family, how to use the same; that plaintiffs failed to give any instructions whereby the defendant was damaged in the sum of twenty dollars, and the consideration of the note had failed to that extent.

For a further defense the defendant alleged, that on the day the said note became due, he went, with the purpose of paying the same, to the Breckenridge Express office, where it was made payable, and called on the express agent for the note, informing him that he had come with the money to pay it; that said agent informed him that said note was not there; and defendant averred that it was not there for sometime after it became due, and claimed to be relieved of interest, costs and attorney's fee, and the further sum of $20 for partial failure of consideration. The answer further stated that the defendant brought the money into court and was willing to pay what was justly due on said note.

Plaintiffs, in their petition, stated the consideration of the note sued on to be a sewing machine, and, in their reply, denied all the allegations of defendant's answer.

The defendant testified to an engagement on the part of the agent himself, made at the time of the sale of the machine, to give instructions as to its use, once every week or ten days for the period of six months, but there was no testimony whatever of any undertaking by the plaintiffs, or either of them, in person, or by the agent on behalf of the plaintiffs, to give such instructions, or of any authority to the agent to so bind them.

He further testified that he called at the express office at the maturity of the note, for the purpose of paying the same, but it was not there.

The express agent testified in substance, that he first received the note for collection, on the 3rd day of February, 1873, and returned it February 15th, 1873. He received it again March 3rd, 1873, and returned it March 22nd, 1873, unpaid; and while it was in his possession the first time, the defendant expressed his willingness to pay it, if he would deduct the interest, but tendered him no money. Witness informed defendant that he had no authority to make any deduction; and stated further that he had no recollection of the defendant having called to see him about the note prior to Feburary 3rd, 1873, though he might have done so.

There was testimony by the agent as to his agreement to give instructions, and as to the instructions given by him; but this need not be noticed.

It does not appear that any money was brought into court by the defendant.

The instructions asked by the plaintiffs and refused by the court, which the plaintiffs here insist should have been given, were based upon the idea, that it was the duty of the defendant, when he called at the express office to pay the note at its maturity, and found it was not there, to make a...