Judge v. Leclaire

31 Mo. 127 | Mo. | 1860

Scott, Judge,

delivered the opinion of the court.

This was an action of replevin for a horse. On the evidence in the record (it being all oral) as to the contract between the parties to the sale, the court should have instructed the jury that it was their province to ascertain what was the contract between them. If it was the intention that the property in the horse should pass presently, and afterwards a note with security was to be given for the price, they would find for the defendant; buix if they believe that it was the intention of the parties that the property in the horse should should not pass until a note with security was given, they would find for the plaintiff. The law is well settled that where the terms of a contract are to be ascertained from the oral evidence of witnesses, it is the province of the jury' to determine from the evidence what is the contract. (Islay v. Stewart, 4 Dev. & Bat. 160.)

The evidence, as it appears in the record, of the plaintiff’s abandonment of bis right to the horse was too slight to be submitted to a jury. It is not intended by this'to prevent the parties from going into that matter on another trial. We only say that the evidence is weak as it appears in the record. As the court went into the evidence in relation to the suit in the justice’s court, why was not all of it stated in the record ? If there was a compromise of the suit in the justice’s court, why were not the terms of it proved, if the evidence was deemed material ?

The other judges concurring,

the judgment is reversed and the cause remanded.