111 Mo. App. 532 | Mo. Ct. App. | 1905
(after stating the facts). — Appellant assigned as error the action of the court below in-peremptorily directing a yerdict for the plaintiff. Judge Thompson, in his work on trials, lays down the law thus: “When there is nothing for a jury to determine except the amount of the principal and the interest due on a note, it is competent for the court to instruct them as to the character of their yerdict.” 2 Thompson, Trials, sec. 2265. But this rule does not obtain in Missouri. Our Supreme Court has long since said: “It is plain that the jury must make a finding upon all the issues presented by the pleadings. All the facts necessary to support the judgment must be found, and the court is not authorized to invade the province of the jury in this respect. ...'. The amount of the debt due at the time was not passed upon by the jurors, and this could only be done by them as triers of the fact.” Cates v. Nickell, 42 Mo-. 169. In the case above cited the court based the decision upon the statutes of 1865, chapter 169, section 21 and 26 and said: “These sections contain the provisions by which this question must be determined. The first directs that fin every issue for the recovery of money only, or specific real or personal property, the jury shall render a general verdict.’ The text provides as follows: ‘When a verdict shall be found for plaintiff, in an action for the recovery of money only, the jury shall also assess the amount of the recovery.’ ” R. S. 1899, secs. 721, 726. The -facts before' the court in that case were, the jury had returned a general verdict on a note for the plaintiff. The court discharged the jury and figured the amount of note and interest for which
It is true there are cases where a peremptory instruction to find for the plaintiff is permissable; and such is said to be proper, in a case under the pleadings
Appellant contends that the court erred in excluding from evidence the deed of trust securing the notes sued on, and the release thereof executed by J. W. M'. Palmer, reciting that the debt therein had been fully paid and acknowledging satisfaction thereof. Under the evidence in this case, this ruling of the trial court was certainly error. It was proved by the witness Palmer that, one of the notes mentioned in the deed of trust as having been paid was the identical note in suit. It was not only proved by respondent that J. W. M. Palmer had acted for the parties in doing all the writing, drew up and signed the note in the first instance, but had at all times kept the note under his control and management for his daughter until after his brother’s death; that he had acted for his daughter in collecting from the maker and crediting on said note the only payment ever made thereon. In .fact no one else ever had anything to do with the note until after James R. Palmer’s death. Respondent had, by thus leaving con
It is unnecessary to notice the instructions refused.
For the errors mentioned the judgment is reversed and the cause remanded.