Noffsinger v. Bailey

• Decision Date: 31 October 1880
• Citation: 72 Mo. 216
• Parties: NOFFSINGER v. BAILEY et al., Appellants.
• Court: Missouri Supreme Court

72 Mo. 216

NOFFSINGER

v.BAILEY et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

AFFIRMED.

Boggess & Cravens for respondents.

Slavens and Gates & Wallace for appellants.

HENRY, J.

Plaintiffs were pork packers, and engaged to kill, cure and pack for defendants a lot of hogs; and a portion of the pork was damaged, defendants allege, in consequence of the negligent and unskillful manner in which it was handled by plaintiffs; who, on the contrary, allege that, against their judgment and advice, they were ordered by defendants to kill at a time when the weather was too warm, and that the damage resulted from that fact, and not from their unskillful or negligent handling of the meat. After the business was concluded, plaintiffs called upon defendants for a settlement. Defendants had previously claimed compensation for the damaged meat, and when a settlement was demanded by plaintiffs, who informed defendants that there was a balance in defendants' favor due from plaintiffs of $1,783.51, a much larger amount than defendants supposed, they agreed to receive $2,000 in full of all demands. There was a mistake in the account in the addition of the debits and credits on plaintiffs' books of exactly $2,000, and the exact balance due plaintiffs, without any credit for damaged meat, was $216.49, and plaintiffs sued defendants for $2,000 as paid by mistake, making no claim against them for $216.49, balance against them on the account, because, in the settlement, that amount had been allowed to defendants for damaged meat, and the receipt given by them for the $2,000, specified that $216.49 of that sum was for damages to meat. Defendants alleged that the reason the receipt was given in full for damages was, that if there was a balance of $1,783.51 due them on the account, they had not sustained damages to the amount they supposed, and were willing to accept the two sums in full satisfaction. There was a trial of the cause and plaintiffs recovered a judgment for $2,000, from which defendants appealed.

Evidence for plaintiffs fully established the mistake in the account, and tended to prove that the injury to the meat was occasioned by the peremptory order of defendants to kill at an unseasonable time. That for defendants tended to show that the damage was occasioned as they alleged, but evidence of the amount, or tending to approximate to the amount of the damage so sustained, beyond what was allowed by plaintiffs in that settlement, was not introduced. The court, at the instance of plaintiffs, gave the following instruction: If the jury believe from the evidence that the defendants, on the 11th day of May, 1875, with full knowledge of all the facts connected with the spoiled or damaged condition of the pork slaughtered, cured and packed for them by plaintiffs, received from plaintiffs, in full satisfaction and settlement of all damages occasioned by such spoiling and deterioration of said pork, on an agreement of compromise and settlement thereof, between plaintiffs and defendants, the sum of $216.49, and which sum was thereupon credited to defendants on the books of plaintiffs, and included in the footings of said account and in the amount on said day paid by plaintiffs to defendants, and receipted to plaintiffs by defendants, in full of all such damages, then the defendants are not entitled, in this action, to anything on account of such damage, and the plaintiffs must recover.

1. INST RUCTIONS: practic in the...