Welday v. Jones' Ex'r

• Decision Date: 31 October 1883
• Citation: 79 Mo. 170
• Parties: WELDAY v. JONES' EXECUTOR, Appellant.
• Court: Missouri Supreme Court

79 Mo. 170

WELDAY

v.JONES' EXECUTOR, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Franklin Circuit Court.--HON. A. J. SEAY, Judge.

AFFIRMED.

Crews & Booth for appellant.

A. H. Bolte for respondents.

MARTIN, C.

This was a suit in equity to vacate a settlement between two parties, on the ground of fraud and mistake, and to recover $1,391.24 which the plaintiffs claim was overpaid to defendant's testator on faith of the settlement. It is alleged in substance that the plaintiffs were indebted to Charles Jones, in his lifetime, on three promissory notes for land purchased from him, and on two other notes for value received, and on one account stated; that they had a meeting with Mr. Jones in March, 1874, for the purpose of effecting a final settlement of this indebtedness; that Mr. Jones did not have present with him the notes and papers necessary to make the settlement; that in lieu thereof, he submitted a calculation of the amount due, which he represented to have been carefully prepared by a banker, which indicated that the sum of $9,500 was due him on account of said indebtedness; that plaintiffs, not being expert in figures, relied on the computation, believing it to be correct, and paid the sum aforesaid to Mr. Jones; that afterward it was discovered that his calculation was erroneous by an excess of $1,391.24 over the true amount; that Mr. Jones, although notified of the fact, refused to correct the error or return the money.

Mr. Jones, in his lifetime, made answer, and since his death his executor continues the defense which was pleaded by him in person. In this answer the material allegations of the petition are put in issue. It is also alleged by way of special matter that on the 17th day of February, 1873, the plaintiffs, being indebted to Mr. Jones on the matters mentioned in the petition and certain other matters, had an accounting with him in respect to all such matters except the note for $1,550; and that all said matters were adjusted except said note, and that as a result of said adjustment, it was found and agreed between them that the plaintiffs were indebted to him on all said matters in the sum of $7,000, which adjustment and agreement was reduced to a written memorandum to that effect and signed by plaintiffs; that afterward, in 1874, the parties had an accounting at which it was found that plaintiffs were indebted to him in said sum of $7,000 and in a further sum of $1,550, which amounts, with interest, exceeded $9,500; that he offered to take $9,500 in full payment, which offer was accepted and the amount paid over.

There is no conflict in the evidence about the true amount of the items of indebtedness which went into the settlement. The items were computed and paid at an excess of $1,391.24 over their true amount. It appears from the evidence that a partial settlement did take place in February, 1873, at which it was ascertained and declared that $7,000 were due on account of the three...