9 Mo. 834 | Mo. | 1846
delivered the opinion of the court.
The plaintiffs brought their action of assumpsit in the circuit court of Chariton county against the defendants, who pleaded non-assumpsit, and gave notice of a set off under the statute.
From the evidence in the cause, as preserved by the bill of exceptions, it appears that Moore & Feazel were largely engaged in Chariton county in the purchase of tobacco, and preparing it for the European markets. Glasgow & Harrison were merchants in St. Louis, and undertook the agency of shipment and sale of the tobacco in Europe, for which service and advancements made on account of the tobacco consigned to them, Moore & Feazel were to pay them. The account upon which the action was brought embraced transactions between the parties for more than twelve months, and amounted to upwards of thirteen thousand dollars. After the parties had closed their evidence, the plaintiffs asked and obtained two instructions from the court to the jury — the defendants asked and the court gave, at their instance, four instructions to the jury. The jury not being enabled to agree on a verdict, they were by consent of the parties discharged; and by agreement of said parties the cause was submitted to the court, who found for the defendants, and assessed their damages to $164 75, and entered judgment for the same.
The plaintiffs filed their motion for a new trial, which being overruled, they excepted, and now bring the case to this court by a writ of error, and seek to reverse the judgment of the circuit court.
Upon an inspection of the record, it appears that no evidence offered by the plaintiffs was excluded by the court, nor was any exception taken by them to any evidence offered by the defendants.
The plaintiffs excepted in the circuit court to the third, and perhaps the fourth instructions given on the motion of the defendants; but the exception was not relied upon in this court, as they were so obviously right.
The only point then, is the supposed error in the finding of the court. To say that there was no conflict in the evidence in the cause, would look like an imputation upon the intelligence of the jury who were unable to find a verdict. The record, however, shows that there was contradictory testimony, and when that is the case, the jury have a right to canvass it, and to give to it that weight and consideration which it deserves. In drawing correct and safe conclusions from evidence, the jury and the circuit judge may have many important and signal advan
This case comes within the principle decided by this court in 6 Mo. R. 63, and 8 Mo. R. 437.
