Carter v. McClintock

29 Mo. 464 | Mo. | 1860

Scott, Judge,

delivered tlie opinion of tbe court.

We see no grounds on which to place a reversal of this judgment. The letter written by the authorized agent of the plaintiff and at his request, although not dictated by the plaintiff, was evidence against him. It appears that he was, from conversations with the plaintiff, familiar with the subject about which he wrote, although he happened to fall into a mistake in stating the terms of the contract. But we do not see how the plaintiff was injured by the admission of the letter in evidence. He stands here claiming an advantage from the error into which the clerk was betrayed in describing the contract.

The written contract could only be resorted to in order to ascertain the understanding of the parties. We do not comprehend what is meant by the variance between the answer and the proof. Surely it is not founded on the allegation in the answer that the agreement was conditional, when the whole context of the answer shows that that word had not, nor was intended to have, any other sense than to show that the contract was not complete and had not been fully executed. The suit was on a note, and the answer set up the defence that the note had never been delivered; that the contingency, on which it was to be delivered — the entire fulfillment to the contract by all the parties to it — had not happened when the plaintiff, by fraud and falsehood, obtained possession of it. But it is said that the answer admits that the defendant executed the note. We can very well see how this happened. As the law required the answer to be sworn to, and as the defendant knew the signature to the note was his, he was unwilling to swear that he did not execute it, that is, did not sign it — not intending thereby to admit that the note was a complete instrument or had ever been delivered. The attorney might have been a little more choice in his language and avoided this nicety. But, for an objection like this, to subject a man to the payment of a large sum, under the circumstances of this case, would be an outrage upon justice.

It clearly appeared that the note sued on was one of those referred to in the answer ; and the facts of the answer being clearly proved, the declarations of law made by the court were correct, and those denied to the plaintiff were properly refused.

The other judges concurring, tíre judgment is affirmed.