Benton v. Klein

42 Mo. 97 | Mo. | 1867

Pagg, Judge,

delivered the opinion of the court.

This was a suit in the St. Louis Circuit Court upon a promissory note not negotiable. The answer denied the consideration as implied by the use of the words “ value received” in the body of the note. The execution of the paper itself was not denied, but a special contract between the maker and payee was alleged to have been made at the same time, by which the former was to have a definite time to ascertain the value of the thing purchased, aud for which the note was given. It was averred that if, upon such trial, the same should prove to he valueless, no portion of the note should be demanded as paid. The thing purchased was the right to manufacture and sell in' certain counties in this State a certain “patent improvement in water elevators.” The answer further averred false representations, on the part of the payee in the note, as to the cost of manufacturing the articles in question^ and that, after being put to great expense in testing the value of the improvement, it had turned out to be of no value whatsoever. Only one witness was examined on the part of the defense, and, at the conclusion of his testimony, the court, at the instance of plaintiffs’ counsel, instructed the jury as follows: “ The evidence introduced by the defendant does not amount to any defense to the note sued on.”

The parties instituting the suit were the assignees of the payee in the note, but there is no question as to the right of the maker to set up the defense which he did. If the facts stated existed previous to any notice of the assignment, and there was any evidence whatever tending to prove them, the case ought not to have been taken from the jury. It ought to be a very clear case indeed to authorize such a practice as this. Whether the statements of the defendant (being the only witness in his own behalf) are worthy of credit or not, belongs exclusively to the jury to determine. They must also pass upon the sufficiency of the testimony to prove the matter relied upon, if it tends in the remotest degree to establish it. We think, upon an examination of the testimony, that there was sufficient to let it go to the jury, and that the instruction was erroneous..

The instructions asked on the part of the defendant, and refused by the court, substantially embodied the principles of law governing in such cases. The facts developed in another trial may not be precisely the same, and we shall not therefore say that they should be given in the exact form in which they'were drawn.

For the error in giving the instruction asked by plaintiffs,-the judgment must be reversed and the cause remanded.

The other judges concur.