3 Mo. 144 | Mo. | 1832
Lead Opinion
delivered the opinion of the Court.
This action was commenced-by Fenton against: Perkins-before-a; Justice of the; Peace.- Judgment being given against Bérkins,.he-appealed to the-Circuit Court of' Boone county,-w-here judgment being given for Pferkins, Fenton, for the second time,, brings up-the-cause here to reverse the judgment of the Circuit Court. It was proved-before the Circuit Court, that some time ¡«-.February, 1830, the plaintiff and defendant traded-with each other: Fenton gave Perkins a horse worth thirty or forty dollars for two-notes, one made by Perkins himself to Fenton for five dollars, the-other note (as the withess expressed it)-on John McMickie for seventy-five dollars.The horse was delivered to Perkins, andhe agreed' to leave- the notes with Dr. Ben— net. Fenton, on application to Dr. Bennet, was offered two notes, one of which only he received, which was the-note of Perkins;:the other purported to be-made by John Mickle. He refused to receive the last, alledging:as a reason that he-was entitled'-to have the note-of John McMickie.- To prove that the parties contracted for this particular note, the defendant gave in evidence that he had been seen by the plaintiff'in error and others, to-have some-months before a note commonly called a Martin and McMickie note, several of which were said to be in circulation, ■ purporting to be made by McMickie to one Martin; and which were thought to be of doubtful characterbut it was not proved to be signed by John Mickle. Little other evidence was given. It was proved that the note when traded for was at Perkins’ house, and was understood'by Fenton to be already in existence, and-there was ■ no conversation about' the time when it had become due, or whether then due, or: when it would be due.- This Court, when the cause was up before, decided that Fenton was entitled to-a note signed by John. McMickie, unless it could be proved that this note was specially contracted for. Lest the former decision of 'the Court should he misunderstood, it will be here observed that the Court decided th'at'Fenfon was, under the circumstances of this particular case, entitled to ■ a note signed by John McMickie,- and that his handwriting should he intelligible,-.unless it could be proved that this particular note was understood’to be the-subjeet matter of the contract, because -it was considered that Perkins had no right to impose on Fenton the task of proving that Mickle was intended for McMielde.- The abbreviations of a man’s given name are so common, that, without any violence to the law of the land, the Courts may take judicial notice of them ;..but can it be said so of the family name?. This name,it may be also observed, is. abbreviated in the initial letters,
Dissenting Opinion
dissenting.
I dissent from=the opinion of the Court. Eooking.at the record, I am not satisfied with the verdict of the jury. As a juror, I woukflnot have concurred in rendering, it; and as the Judge of the Circuit Court, I should' probably, have granted a new trial. But the question is now a different one. This Court will control the Circuit» Court in the exercise of its discretion in those cases only, where it can-see that that discretion has been clearly' abused. In this case if the finding of the jury be improper, it is so because they have found without sufficient evidence, and not because they have found against evidence or the weight of evidence. The evidence on the part of the plaintiff shows that Eenton contracted for a note -on John McMiclde, and if the note left at Dr. Bennet’s was signed by John McMiclde, it was in fact and in-law a note on John McMiclde, though signed by the name of John Miclde. There was a good deal of evidence (not very direct it is admitted) tending to show the note left at Dr. BennePs was the identical note contracted for; and not a tittle of evidence to show that it was not the note intended. Under the instructions of the Court properly given, the jury weighed the sufficiency of the proof, as was their province to do, and found in effect that it was the note contracted for, and there is nothing shown to preclude the jury from so finding reasonably. A mere dissatisfaction with the finding of the jury, will nobin many cases authorize the Circuit Court to set aside the ver--diet and grant a new trial;, and where we cannot see plainly that the finding has-been against evidence, or without any evidence at all, we should take it that the Circuit Court has exercised-’its discretion soundly in refusing the new-trial..
