Pratt v. Menkens

• Decision Date: 31 March 1853
• Citation: 18 Mo. 158
• Parties: PRATT & REATH, Respondents, v. MENKENS & MENKENS, Appellants.
• Court: Missouri Supreme Court

18 Mo. 158

PRATT & REATH, Respondents,

v.MENKENS & MENKENS, Appellants.

Supreme Court of Missouri.

March Term, 1853.

1. Damages arising from a different transaction are no defense to an action on a note.

2. Unliquidated damages are not the subject of set-off.

Appeal from St. Louis Court of Common Pleas.

B. A. Hill, for appellants.

The new practice act provides that the defendant may unite in his answer as many grounds of defense, including off-sets, as he may have, although the same may heretofore have required different actions at law, or an action or actions at law, and a suit or suits in equity.

Glover & Richardson, for respondents.

I. The answer showed no actual damage or injury sustained by the appellants from the alleged frauds of the respondents. They sold the wares to their customers for full value, in good faith, and have not refunded to their customers, nor are they liable to refund to them.

II. The matter contained in the answer is not the proper subject of a set-off.

RYLAND, Judge, delivered the opinion of the court.

The plaintiffs filed their petition in the St. Louis Court of Common Pleas, against the defendants, on three promissory notes, one dated St. Louis, September 1st, 1851, for $246.25, due in seven months; another, dated Philadelphia, August 5th, 1851, for $327.80, due in ni months; the third, dated at St. Louis, September 1st, 1851, for $246.2, due in nine months. The two last notes were to be paid with exchange on Philadelphia, and the plaintiffs aver that, at the maturity of the last two notes, the exchange on Philadelphia was worth one-half of one per cent. premium. The plaintiffs ask judgment on said notes with interest and exchange.

The defendants answered the petition, and stated that, from the 6th of February, 1851, until the commencement of this suit, the plaintiffs were dealers in jewelry, silver ware and watches, at the city of Philadelphia, Pennsylvania, and defendants were dealers in jewelry, silver ware and watches during the same period of time, in the city of St. Louis, Missouri; that, during said time, the defendants bought of plaintiffs, on the 6th of February, 2d and 12th of March, 22d of May, 5th and 29th of August, and 1st of September, divers wares and watches, to be resold by them at St. Louis, in their trade aforesaid; that the plaintiffs, designing to cheat and defraud the defendants, did, on said days and times, sell to defendants wares and watches, which plaintiffs represented to be made of gold, twelve carats fine, and for which wares and watches, so sold, the plaintiffs demanded and received of defendants, as for gold wares and watches twelve carats fine, the sum of $3,776 12; that at the time of said sale of said wares and watches, the plaintiffs well knew that the gold, of which the cases and other parts thereof were manufactured, was only four carats fine; and the plaintiffs had so prepared the cases of said watches and the outer parts of said wares, by acids and other contrivances, with intent to cheat and defraud the defendants, that they had the appearance of gold twelve carats fine when, in truth and in fact, they were only four carats fine; that defendants were entirely ignorant of said fraud and deceit of the plaintiffs.

The defendants aver, that the difference between the value of said wares and watches, at twelve carats fine and four carats fine, at the time of the sale, was $376 50, and that said wares and watches so sold by plaintiffs to defendants were, in fact, only worth $3,399 62. The defendants also state, that the plaintiffs, on the 5th of August, 1851, in like manuer...