74 Mo. App. 1 | Mo. Ct. App. | 1898
— The plaintiff’s petition contains five counts. In the first he sues for the contract price of fifteen hundred and thirty-nine bushels of corn. It is averred that the defendant agreed to pay thirty cents per bushel for the corn. The second count is for fifty additional bushels of corn at the same price. In the third count the plaintiff claims to have sold two mules to the defendant for the sum of $130. The fourth count is to recover for three hogs of the alleged value of $19.30, which the plaintiff alleges he sold and delivered to the defendant. The fifth count is for labor performed by plaintiff for the defendant of the alleged value of $12.50.
In answer to the first and second counts the defendant admits that he received from the plaintiff nine hundred and five bushels of corn, but he avers that he agreed to pay and had paid twenty-five cents a bushel therefor. As to the fourth count he admits the purchase of the hogs, but he pleaded payment. The same plea is interposed to the fifth count. As to other matters the answer is a general denial. In addition the defendant set up in his answer five separate counterclaims or set-offs, to which the plaintiff interposed a general denial. The plaintiff introduced evidence tending to support the averments in his petition. The defendant also introduced evidence tending to sustain his answer. The jury returned the following verdict: “We the jury find for the plaintiff in the sum of $371.28 on first count of his petition; also in the sum of $17.10 on the second count in his petition; also in the sum of $138.84 on the third count in his petition; also for the sum of $20.80 on the fourth count in his petition; also for the sum of $13.35 in the fifth count of his petition.” There was no finding as to defendant’s counterclaims. A judgment was entered in favor
“The court instructs the jury that if you believe from the evidence that the defendant purchased corn from plaintiff during the year 1894, and the same has not been paid for by the defendant, then your verdict should be for the plaintiff on the first and second counts of the petition in such sums as you may think the corn worth, not exceeding four hundred and sixty one dollars and seventy cents on the first count, and not exceeding fifteen dollars on the second count, together with interest thereon at the rate of six per cent per annum since the fall of 1894.”
We have italicized the objectionable portions of this instruction.
The plaintiff averred and testified that he sold the corn at an agreed price, to wit, thirty cents a bushel.
For the errors pointed out in the plaintiff’s instruction and for the admission of the irrelevant testimony referred to, the judgment will be reversed and the cause remanded.