Shockley v. Booker

• Decision Date: 25 June 1918
• Docket Number: No. 2254.,2254.
• Citation: 204 S.W. 569
• Parties: SHOCKLEY v. BOOKER.
• Court: Missouri Court of Appeals

204 S.W. 569

SHOCKLEY v. BOOKER.

No. 2254.

Springfield Court of Appeals. Missouri.

June 25, 1918.

Appeal from Circuit Court, Pulaski County; L. B. Woodside, Judge.

Action by O. W. Shockley against Willet Booker. From a judgment for defendant, plaintiff appeals. Affirmed.

W. D. Johnson, of Crocker, and G. W. Goad, of Springfield, for appellant. Eldredge & Bell and R. L. Johnston, all of Waynesville, for respondent.

BRADLEY, J.

This cause originated in a justice of the peace court, based on account for $20, the value of 20 bushels of corn, and judgment there went for plaintiff. On trial de novo in the circuit court, before the court and a jury, judgment went for defendant, and plaintiff appealed.

In the summer of 1914 one George Simpson, who had rented a piece of bottom land belonging to plaintiff, borrowed from plaintiff 16 bushels of corn, and agreed to pay back 20 bushels therefor at gathering time. Simpson sold his farm, crop, and stock to defendant, and he says defendant became paymaster forthe 21 bushels of corn. Plaintiff says that he was informed of the deal between Simpson and defendant, and that he released Simpson and accepted defendant as paymaster. Defendant says that he bought the land, stock, and crop from Simpson, except 20 bushels of corn, and that he was merely to deliver the 20 bushels to plaintiff out of the Simpson crop. An overflow damaged the bottom corn, out of which defendant says he was to deliver the 20 bushels, and plaintiff refused to accept his 20 bushels out of the damaged corn, and after Simpson returned from Oklahoma, where he had gone after selling out to defendant, plaintiff brought this suit for the value of the 20 bushels of corn.

Plaintiff proceeded on the theory that there was a complete novation, and that defendant became liable for the delivery of the corn or its value: while defendant insisted that he did not assume the debt for the corn, but agreed only to deliver 20 bushels out of a certain piece of corn. The court of its own motion instructed the jury as follows:

"The court instructs the jury that, if the defendant bought the 20 bushels of corn from Simpson and in payment therefor agreed to settle the debt with Shockley, either in corn or cash, the verdict should be for the plaintiff. If, however, defendant's contract was only to deliver to Shockley 20 bushels of corn out of the crop he got from Simpson and to have the balance himself, and if he tendered the corn to Shockley, who refused to take it because it had been overflowed, you will find the issues for the defendant."

Plaintiff challenges the first half of this instruction, on the ground that by it the...