Harrison's Administrator v. Hastings

28 Mo. 346 | Mo. | 1859

Richardson, Judge,

delivered the opinion of the court.

The payee and endorser of the note sued on madeja written contract with the defendants, by which he agreed to cause two balloon ascensions to be made at Boonville*on the first and fourth days of October, 1855, and also to give two exhibitions of fire-works — one on each of said days. The defendants agreed to pay Peckham, for the two balloon ascensions and exhibitions of fire-works, eight hundred dollars, for which they executed and delivered their two negotiable promissory notes, each for four hundred dollars, the note described in the petition being one of them. It was further stipulated in the contract that “ it is understood by the parties that each balloon ascension is to be at the rate of two hundred and seventy-five dollars, and each exhibition of fireworks is to be at the rate of one hundred and twenty-five dollars.” Both of the notes were endorsed for value to the plaintiffs’ intestate before they matured. The defendants admitted in their answer that Peckham caused to be made one balloon ascension and one exhibition of fire-works, but set up as a defence a failure of the consideration of the note sued on, although the other note had been surrendered to them. One of the witnesses on the trial stated that only one ascension was attempted, which he considered, a failure. At the close of the testimony the defendants asked leave to amend their answer so as to make it conform to the evidence, but the court refused leave.

By the agreement of the parties the consideration of each note was kept separate and distinct, and consequently the failure of the consideration of one note did not affect the right to maintain an action on the other. The answer concedes that there was a consideration for the note sued on, for it admits that there was one balloon ascension and one exhibition of fire-works. There is no pretence in the answer that the entire consideration of both notes had failed, and by their own admission they were not damaged by the failure of the consideration of the other note as it was delivered up to them. We think the court properly refused the instructions asked by the defendants, and correctly stated the law in the instruction that was given.

There was no error in refusing permission to amend. The only ground for the amendment was the evidence of a witness disclosed at the trial, and the party sought by an amendment to deny a fact which was admitted in the answer.

The other judges concurring, the judgment will be affirmed.