Thornberry v. Thompson

• Decision Date: 15 June 1885
• Parties: ALEXANDER THORNBERRY, Respondent, v. GEORGE W. THOMPSON, ET AL., Appellants.
• Court: Kansas Court of Appeals

18 Mo.App. 421

ALEXANDER THORNBERRY, Respondent, v. GEORGE W. THOMPSON, ET AL., Appellants.

Court of Appeals of Missouri, Kansas City.

June 15, 1885

APPEAL from Daviess Circuit Court, HON. C. H. S. GOODMAN, J.

Affirmed.

The case is sufficiently stated in the opinion of the court.

SHANKLIN LOW & MCDOUGAL, for appellants.

I. The verdict was against the law and the evidence, and defendant's motion for new trial should have been sustained. There was no agreement, express or otherwise at the time the note was given, that it was given and received in payment of the three hundred dollars.

II. The court erred in giving instructions for plaintiff. By the first and second the jury was told to find for plaintiff if they believed that Thompson delivered and plaintiff accepted the note in payment of the three hundred dollars mentioned in the contract with Allen. This is not enough. It must have been expressly agreed at the time that it was so given and received. Appleton v. Kennon, 19 Mo 637; Howard v. Jones, 33 Mo. 583; Thornberry v. Thompson, 69 Mo. 481.

III. Where material evidence is improperly admitted, it is assumed to have been prejudicial to the party against whom it was admitted. Such evidence was admitted here. And the rule as to erroneous intructions is stronger, it must be morally certain that it did not mislead the jury. Thomp. Ch. Jury, sect. 130; Watcher v. Jones, 31 Me. 534; 30 Ib. 173.

IV. The court erred in refusing defendants' instructions as to failure of consideration, and it should have been submitted to the jury without the rider added by the court. The makers of the note received no consideration therefor, and plaintiff gave up no right for the promise to pay by defendants.

No brief on file for the respondent.

OPINION

PHILIPS P. J.

This cause has been once before in the supreme court on appeal, and is reported in 69 Mo. 481.

On the case, as then presented by the record, the court held that the acceptance of the note in suit amounted only to an alteration of the original contract by extending the time of the payment of the $300, agreed to be paid on the Iowa cattle, after returns from the shipment of the Grundy county cattle, etc.

Hough, J., who delivered the opinion of the court, said: " The contract before us unquestionably fixes the character of the $300 stipulation to be paid, as part payment, and not as earnest, and testimony to show the contract would have been inadmissible, because it would have contradicted the writing. The contract required the instalment of $300, to be paid before the delivery of the Iowa cattle, and as an inducement, doubtless, to the fulfilment of the contract by the defendant, Allen, but in the absence of testimony showing that the note was delivered by the defendants and received by the plaintiff in payment of said $300, the delivery and acceptance thereof amounted only to an alteration of the original contract, and a change of the time of the payment from the time fixed in the contract to the time fixed in the note. The testimony fails to show any such agreement, and though the plaintiff pleaded it in his replication, he did not testify to it himself, or otherwise attempt to establish it at the trial. If there had been any testimony tending to show such an agreement, the question should have been submitted to the jury."

The object of the plaintiff on the second trial, from which defendants again appeal, manifestly was to supply this absent testimony. If he has presented any such proof he was entitled to go to the jury.

I have examined with care the evidence preserved in the bill of exceptions, and am satisfied there was such proof, and that it would have been error for the trial court to have taken the case from the jury.

The plaintiff testified substantially as follows: " Before the delivery of the Grundy county cattle, both Allen and Thompson told him that Thompson had bought the contract from Allen. Upon their return from the sale of the Grundy county cattle--the $300 being then due--Allen and Thompson wanted plaintiff to extend the time for payment of the $300. This he positively refused to do, and gave Thompson his reason therefor. This statement is nowhere contradicted in the record by any witness. Thompson then offered to give plaintiff his note with his (Thompson's) father and brother as sureties in payment of the $300 then due, which plaintiff agreed to. Thompson afterwards asked him to accept Allen as the surety, which he declined. Afterwards, on the same day, the note was written out by plaintiff in Thompson's presence, and he (Thompson) took it off to obtain the signature of the surety....