Sweet v. Maupin

• Decision Date: 31 January 1871
• Citation: 47 Mo. 323
• Parties: HEZEKIAH R. SWEET, ADMINISTRATOR OF ESTATE OF RICHARD R. JONES, DECEASED, Defendant in Error, v. AMOS W. MAUPIN, Plaintiff in Error.
• Court: Missouri Supreme Court

47 Mo. 323

HEZEKIAH R. SWEET, ADMINISTRATOR OF ESTATE OF RICHARD R. JONES, DECEASED, Defendant in Error,

v.AMOS W. MAUPIN, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1871.

Error to First District Court.

Lay & Belch, for plaintiff in error.

H. Flannagan, with J. Halligan, for defendant in error.

BLISS, Judge, delivered the opinion of the court.

This suit was commenced to recover the amount of sundry promissory notes given by defendant to plaintiff's intestate, and the defendant claimed that the notes had been adjusted by way of set-off in an allowance of demands against the estate presented by him. The questions of fact were submitted to the court, which found for the defendant, and the plaintiff excepts to the declarations of law that governed its finding. They were not entirely consistent with each other, but were all controlled and vitiated by the following, given at the instance of defendant:

“1. The notes sued upon were a proper, entire, and undeniable offset to the claim of A. W. Maupin before the County Court of Franklin county; and these notes, if found to have been inventoried prior to the presentation of Maupin's account to said court, must have been adjudicated, and are a conclusive bar to the recovery in this case.

2. The judgment of the County Court, offered in evidence in the matter of allowance of A. W. Maupin against the estate of R. R. Jones, deceased, is prima facie evidence that all the notes sued upon were litigated before the County Court of Franklin county in the rendition of said judgment; and unless the plaintiff removes this presumption by positive evidence, the court, sitting as a jury, will find for the defendant.”

Defendant had exhibited a large account against the estate, upon which he was allowed over $3,000, and the notes amounted to a few hundred dollars more. Plaintiff claims that nothing but the account was before the court, and though the notes were talked of, the arrangement was that the account was to be adjusted and its balance settled by the court, and afterward the plaintiff was to allow such balance in payment of the notes as far as it would go. These notes had been inventoried, and it will be seen that the first declaration cuts off all consideration of the issue in relation to their adjudication as a set-off. It is so glaringly improper that counsel do not defend it, but claim that it is rendered nugatory by other declarations. There is some inconsistency between them, but the court having given...