44 Mo. App. 42 | Mo. Ct. App. | 1891
This is an action on a promissory note, dated on the twentieth day of July, 1883, for $100, with interest at the rate of ten per cent, per annum. The note represented the balance of the purchase money of a farm, sold by the plaintiff to the defendant. The execution of the note was admitted, and the defendant set up in his answer a counterclaim for damages to the amount of $500, growing out of alleged misrepresentations by the plaintiff touching the location of the improvements and the boundaries of the land.
This is the second time the case has been before us. Hitchcock v. Baughan, 36 Mo. App. 216. On the first trial the defendant recovered a judgment for costs. On the second trial he recovered a judgment against the plaintiff for $321.25. From this judgment the plaintiff has again appealed.
“2. The court instructs the jury that, if they find the issues for the defendant, they will state in their verdict the amount defendant was damaged, not to exceed the amount of $500.”
The complaint is now made that the instructions are wrong, and that the verdict is not responsive to the issues. There is no trouble with the instructions and verdict. The trouble is with the action of the court in entering a judgment for the entire finding. The court should have deducted the amount which was admitted to be due on the note, and entered judgment on the counterclaim for the remainder. The plaintiff’s damages were admitted, and were a matter of law with which the jury had nothing to do. Stewart v. Hadley, 55 Mo. 235.
All the judges concurring, it is so ordered.