65 Mo. 241 | Mo. | 1877
This was a suit in the Greene Circuit Court commenced in October, 1873: Plaintiff in his petition states that in December, 1859, defendant McCluer, and George R. and Clark Barrett, executed their note to Hash & Dudley, a firm composed of John Hash and Pullam Dudley, for $1,050, payable April 1, 1860, with ten per cent-interest per annum from its maturity; that on a settlement of the partnership, the note in question, became the property of said Pullam Dudley; that on the 28th day of January, 1866, said McCluer falsely and fradulently represented to said Dudley that he had paid a number of debts specified in the petition, on which he had been garnisheed as the debtor of said Hash & Dudley, amounting to within $414 of the amount of the said note executed by him to Hash & Dudley, and induced said Dudley to accept, in satisfaction of said note $414, and to deliver up the note to defendant; that said Dudley assigned said demand to plaintiff, who asks that said settlement be set aside, and for judgment for the balance of said note and interest.
Plaintiff' contends that it was a proceeding in equity, and that this court can and should review the-evidence in the cause. We have but to say in regard to this point, that it was either a suit in equity, or the court -committed an error in trying it without the intervention of a jury, but as it was treated by the court and the counsel, on both sides, as an equitable proceeding, and so tried without objection from either side, without examining the numerous authorities cited by the counsel, we shall regard it as a suit in equity, but, inasmuch as for an error which will be presently adverted to, the judgment will be reversed and
Reversed.