Dobbs v. Cates' Estate
1895 Mo. App. LEXIS 349
Mo. Ct. App.
1895
Check Treatment
Ellison, J.

This аction is based on an account for services rendered, for cоrn and oats furnished to deceased, and for board of deceased. The account was for $126.85, ‍‌‌​​‌​​​‌‌​​‌​​​‌​‌​​​‌‌​‌​​​​‌​‌‌‌‌‌​‌‌‌​​​‌​​‌‍with a credit of $8.50, leaving a balance of $118.35. The plaintiff prevailed in the probate court, and, on appeаl, in the circuit court.

The judgment is attacked, for the alleged reason *660that there is no evidence supporting it. We have read the record, and find there was evidence upon which the jury could make a finding for plaintiff. Defendant’s evidence tended strongly to overcome that for plaintiff, by showing that plaintiff, since the death of deceasеd, had made statements inconsistent with his claim. But this plaintiff ‍‌‌​​‌​​​‌‌​​‌​​​‌​‌​​​‌‌​‌​​​​‌​‌‌‌‌‌​‌‌‌​​​‌​​‌‍denied. It was further shown that рlaintiff was owing deceased a note and interest, and that he paid interest after this claim accrued. This will not authorize us, as a matter of law, to say that deceased did not also owe plaintiff. The matters of disputе were peculiarly for the determination of the jury, and we can not interfere.

Defendant asked the court to instruct the jury, that plaintiff’s affidavit to the claim was not evidence. in his behalf. The court refused the Instruction, and, we think,' ‍‌‌​​‌​​​‌‌​​‌​​​‌​‌​​​‌‌​‌​​​​‌​‌‌‌‌‌​‌‌‌​​​‌​​‌‍properly. The affidavit had not been offered as evidence, nоr referred to. There was no occasion for such instruction. It is true the affidavit is not proper evidence. Koch v. Hebel, 32 Mo. App. 103. And in that case Judge Ramsay, speаking for the court, held' it to be improper for the attorneys to comment, in plaintiff’s behalf, on the fact that he had made an affidavit to his ‍‌‌​​‌​​​‌‌​​‌​​​‌​‌​​​‌‌​‌​​​​‌​‌‌‌‌‌​‌‌‌​​​‌​​‌‍demand. But there is nothing in that case which countenances the idea of introducing the affidavit into the case by an instruction, when it had not been mentioned in the triаl.

It is next objected, that the court erred in giving the following instruction for plaintiff: “Thе court instructs the jury, that if you believe from the testimony that the estate of M. M. Cates, deceased, is indebted to the plaintiff, John ‍‌‌​​‌​​​‌‌​​‌​​​‌​‌​​​‌‌​‌​​​​‌​‌‌‌‌‌​‌‌‌​​​‌​​‌‍Dobbs, in the sum of $118.35, or any othеr sum, you will find for him in that sum.” The instruction is unfortunately worded, yet we do not believe it was understood by the jury as directing dhat if they found any sum for plaintiff, they *661should find $118.35. The verdict itself shows this, since it was for $75. Neither is it a valid objection to a verdict against the party objecting, that it is for a less sum than the evidence in his behalf showed it should have been. The jury, in such cases, on such matters of account, are nоt bound by the amount stated by witnesses. Powell v. Railroad, 59 Mo. App. 335.

The instruction refused for defendant, which declared that the declarations and admissions of plaintiff could be cоnsidered by the jury as any other evidence, embodied a correct рroposition of law. But it was not error to refuse it in an instruction, since it is liablе to the objection, so frequntly referred to by the courts, of singling out a spеcific matter for the attention of the jury. L

We are of the opinion thаt the court’s amendment of plaintiff’s third instruction, was proper enough. We think the court would not have been justified in characterizing deceased’s stаtements of having employed plaintiff and of his obligation to pay him, as “lоose expressions.” Nor was there anything in the case which would have justifiеd the court in calling attention to “family relationship,” since there was no such relationship shown here as would rebut the usual presumption that compensation follows the performance of service in the absence of anything showing a contrary intention. The instruction, as amended by the сourt, was properly given.

We believe the jury was properly directed, and if they have erred in their conclusion on the facts it is not in our power to correct the error, since by law the jury must determine such questions. We сan not weigh the testimony without usurping functions not committed to us. The judgment is affirmed.

All concur.