Moore v. Albright

• Decision Date: 31 March 1860
• Citation: 30 Mo. 249
• Parties: MOORE et al., Plaintiffs in Error, v. ALBRIGHT et al., Defendants in Error.
• Court: Missouri Supreme Court

30 Mo. 249

MOORE et al., Plaintiffs in Error,

v.ALBRIGHT et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1860.

1. Where a creditor in stating an account between himself and his debtor gives a credit therein to the latter by mistake, or is induced to give such credit on terms and conditions that are not afterwards complied with by the debtor, he ought to be permitted to avail himself of these facts in a suit against the debtor to recover the item for which the credit was allowed.

Appeal from St. Louis Circuit Court.

This was an action to recover $188.57 for goods sold and delivered. The defendants set up that the indebtedness sued for was cancelled. In support of this defence the defendants adduced in evidence a letter, dated New York, July 17, 1857, written by the plaintiffs to the defendants. In this letter the account between the plaintiffs and defendants is stated. Among the credit items in the account is the following: “By amount to your credit account loss-- $188.57.””” The following passages were also contained in said letter: “We have agreed to cancel the claim due May 5th, &c.” we send you a memorandum of amount drawn for below, which will close the old account, and leaves amount purchased since the fire only to your debit, which we hope will be acceptable to you, and be duly honored on presentation;” “we hope in future to be able to arrange matters so as to avoid the necessity for any disagreement upon the subject of goods not coming to order.” The plaintiffs in rebuttal read the deposition of one Bowron, the book-keeper of plaintiffs, who deposed to the purchase of the goods sued for by defendants. The deposition contains this passage: “About the month of July, 1857, Messrs. John P. Moore & Son offered to Messrs. T. J. Albright & Son to make some reduction in the amount due from T. J. Albright & Son to them on certain terms and conditions, which offer was not accepted and acted upon, and such terms and conditions were not complied with by Messrs. T. J. Albright & Son, and therefore such offer became null and void.”

The court refused the following instructions or declarations of law: “1. If after the goods were sold and delivered to the defendants, plaintiffs voluntarily consented to forego their debt, but no consideration existed in this promise, nor any by the evidence has been shown, then plaintiffs are entitled to recover. 2. If the plaintiffs' promise to cancel was upon certain terms and conditions to be fulfilled by defendants, and such terms or conditions were not fulfilled,...