Sheppard v. Starrett

• Decision Date: 31 January 1865
• Parties: ALVICE C. SHEPPARD, Respondent, v. ANDERSON STARRETT, Appellant.
• Court: Missouri Supreme Court

35 Mo. 367

ALVICE C. SHEPPARD, Respondent,

v.ANDERSON STARRETT, Appellant.

Supreme Court of Missouri.

January Term, 1865.

Appeal from Lawrence Circuit Court.

Ewing and Belch, for appellant.

I. The court erred in excluding the deposition of Funk from the jury. It had some tendency to sustain the allegations in the answer, and to disprove the averments of the petition. He states positively that he was present when the contract was made, and was called on to witness it.

II. If the part of the answer stricken out constituted in itself a good defence to the action, it was error to strike it out because of a supposed inconsistency with other matter constituting a defence. If such defences were inconsistent, defendant might have been required to elect upon which he would rely.

T. A. Sherwood, for respondent.

The court very properly sustained the motion to strike out all that portion of Starrett's answer which did not relate to the execution of the note. That was the only issue between plaintiff and defendant in the court below; any thing else was mere irrelevant and redundant matter, and, as said motion truly recites, irresponsive to the allegations of the petition; and, taken with the denial of the execution of the note, is double. (R. C. 1855, p. 1236, § 31-2.)

BAY, Judge, delivered the opinion of the court.

This was an action to recover the amount of a promissory note alleged to have been executed by defendant for the sum of eleven hundred dollars, payable to the order of plaintiff, and dated September 19th, 1861. The petition after praying judgment, states that the note was given for a tract of land which is therein particularly described. The defendant in his answer first denies that he ever made or executed the instrument of writing sued on, and then proceeds to state that he bought the land (mentioned in the petition) of plaintiff, and received from him a deed of conveyance for the same; that the consideration of said sale was eleven hundred dollars, which amount he paid plaintiff; six hundred dollars in gold, and the balance in personal property, consisting of a two-horse wagon and harness and two mares. On motion of the plaintiff, so much of the answer as relates to the sale of the land and the payment of the consideration money was stricken out; to which action of the court defendant duly excepted.

Plaintiff then introduced as witnesses his two daughters, Sarah Sheppard and Emma Sheppard, both of whom testified that they saw defendant execute the note at their father's house; the last named witness further testifying, that the defendant was to give plaintiff for the place two mares, one wagon and eleven hundred dollars. Another witness testified that in the latter part of September, 1861, defendant told him that he had given to plaintiff a note for eleven hundred dollars. Upon this testimony the court permitted the note to be read in evidence.

The defendant read in evidence the deposition of Thomas Funk, who testified that in the fall of 1861, he and defendant went to the house of plaintiff, and while there plaintiff proposed to sell his place to defendant, and asked defendant what he would give for it; defendant said he did not like to price any man's property. Plaintiff then asked him to make him a bid, and defendant said: I do not like to buy any property now, but I will give you my wagon and horses...