Williamson v. Baley

• Decision Date: 31 October 1883
• Citation: Williamson v. Baley, 78 Mo. 636 (Mo. 1883)
• Parties: WILLIAMSON, Appellant, v. BALEY.
• Court: Missouri Supreme Court

78 Mo. 636

WILLIAMSON, Appellant,

v.BALEY.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

REVERSED.

B. P. Williamson pro se.

C. F. Booher for respondent.

HOUGH, C. J.

This is a suit originally instituted before a justice of the peace in Andrew county on an account for $2, for medical services. The defendant filed a set-off for $1.50 for money loaned and twelve cents interest thereon, and deposited with the constable the sum of fifty cents and all costs then accrued, which sum was refused by the plaintiff. Judgment was rendered by the justice in favor of the plaintiff for the sum tendered and the costs then accrued, and against the plaintiff for all subsequent costs. The plaintiff appealed to the circuit court of Andrew county; a change of venue was taken to Buchanan county, and on a trial de novo in the circuit court of the last named county, there was a verdict and judgment for the defendant.

1. SET-OFF: TENDER.

The judgment of the circuit court is clearly erroneous. On the face of the record, the plaintiff was entitled to a judgment for the amount tendered and the costs of the suit to the date of the tender. Notwithstanding the defendant's tender, the plaintiff had a right to contest the validity of the defendant's set-off, and the jury should have been instructed that the defendant's tender admitted the justness of the plaintiff's demand, and that plaintiff was entitled to recover the amount thereof, less such sum, if any, as they might find to be due from him to the defendant, on the defendant's set-off. After the tender made in connection with the set-off pleaded, the defendant should not have been permitted to introduce testimony for the purpose of reducing the amount of the plaintiff's demand. Mahan v. Waters, 60 Mo. 167, 171.

2. MONEY LOANED FOR GAMBLING.

There was testimony tending to show that the sum which the defendant claimed to have loaned to the plaintiff, was loaned in “poker chips” at a game of chance, and upon this evidence the plaintiff asked the court to instruct the jury, “that if they believed from the evidence that the amount in defendant's set-off had been loaned plaintiff in a game of chance in which both were engaged at the time, and for the purpose of being used in betting on said game, and defendant knew the purpose of the loan, the jury will allow him nothing on account of said set-off.” Section 1548 of the Revised Statutes makes it a misdemeanor in any one to loan or furnish any money or property to any other person to be bet upon any gambling device whatever, if the money or property loaned be so used. The instruction asked is faulty in that it does not contain the qualification contained in the statute that the money was “so used,” and it was, therefore, properly refused.

The court also refused the following instruction asked by the plaintiff: “that upon the record the defendant had admitted plaintiff's claim to be just and due, and the service...