La Salle Extension University v. Jones.

• Citation: 300 S.W. 1000
• Decision Date: 03 January 1928
• Docket Number: No. 16160.,16160.
• Parties: LA SALLE EXTENSION UNIVERSITY v. JONES.
• Court: Court of Appeal of Missouri (US)

300 S.W. 1000

LA SALLE EXTENSION UNIVERSITY v. JONES.

No. 16160.

Kansas City Court of Appeals. Missouri.

January 3, 1928.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

"Not to be officially published."

Action by the La Salle Extension University, a corporation, against J. T. Jones, on a note, begun in a justice court, and appealed to the circuit court. From a judgment for defendant, plaintiff appeals. Affirmed.

Russell E. Holloway, of Columbia, for appellant.

Franklin E. Reagan, of Columbia, for respondent.

WILLIAMS, C.

This case comes to us on appeal from the circuit court of Boone county. The facts show that the La Salle Extension University of Chicago, through its agent, enrolled the defendant as one of his scholars. The application for membership shows the scholar was to have a course in higher accountancy; $15 was paid, and a note was given for a balance; $135 was due on the note when suit was brought.

The suit originated in the justice court. In the circuit court the defendant filed an answer setting up that the lessons which were sold to defendant were lessons in simple bookkeeping and were not higher accountancy, and alleged that the note was without consideration. The jury found in favor of the defendant, and plaintiff, after an unsuccessful motion for a new trial, has brought the case here on appeal.

The first complaint urged against the judgment is that the court erred in not striking out the answer of the defendant filed first in the circuit court. It is contended that the answer filed by the defendant was in the nature of a counterclaim and should have been filed before the justice. The respondent cites McCormick Mach. Co. v. Crawford, 98 Mo. App. 319, 72 S. W. 491. An examination of that case, however, shows that there was a counterclaim in which damages were sought in an amount equal to the amount of the note sued upon. The same may be said of the other cases cited in support of this point.

In Russell v. Owen, 61 Mo. 186, the court held that, when a set-off is pleaded, it is in effect bringing an action for the amount of the set-off. There is a wide distinction between pleading a set-off or counterclaim and a pleading of failure of consideration. We think there is no merit in that contention.

It is next contended that the court erred in admitting evidence as to what was said by the agent as to it not being a bookkeeping course. Evidence was introduced that there was a difference between bookkeeping and higher accountancy. The application recited it should be a course in higher accountancy. Therefore this evidence could not have been hurtful. Again, the abstract of the record simply shows as follows:

"The defendant was further permitted to testify over objection of the appellant to which it saved its exceptions that the agent represented that this was not a bookkeeping course and that the agent promised to find a position for the defendant."

This is hardly enough of a statement for the court to intelligently pass upon the question raised. We rule this point against the appellant.

It is next urged that the court erred refusing to direct a verdict for the plaintiff. There was evidence pro and con as to whether there was a difference between higher accountancy and bookkeeping. This made a question for the jury. The court could not have directed a verdict in the face of conflicting evidence.

It is next contended the court erred in refusing instructions asked by plaintiff. The instructions asked by the plaintiff leave out the question of failure of consideration. We think this was an issue in the case. The court's instructions submitted that...