Leahi v. Dugdale's Administratrix

34 Mo. 99 | Mo. | 1863

Bates, Judge,

delivered the opinion of the court.

When this case was formerly in this court, (27 Mo. 4-37,) it was decided that the contract in question could be assigned to the plaintiffs, and that Dugdale was liable to them for all the money due them, which he paid out after notice of the assignment.

The case having been tried again, there was a verdict and judgment for the plaintiffs, and .the defendant brings the case up by appeal.

The bill of exceptions shows that during the trial the defendant offered various receipts and other papers for moneys paid by Dugdale to various parties as creditors of O’Leary and J. B. Neenan, some of which appeared to have been paid before and some after the assignment of O’Leary and Nee-nan’s contract to the plaintiffs. The plaintiffs objected to the introduction of any evidence going to show that payments had been made after the date of the assignment, which objection the court sustained.

The court erred in sustaining the objection. The date of the assignment had nothing to do with the matter. The defendant was entitled to credit for payments properly made, even after the assignment, if they were made before the date of the notice to the defendant of the assignment. It was the date of the notice, and not the date of the assignment, which was of importance.

No exception was taken to the instructions given. The first instruction refused the defendant was properly refused. Notice was not necessary to make the defendant liable on the contract. It was only necessary in order to deprive the defendant of right to credits for payments made.

The other instructions refused are not considered because the assignment of the contract is not in the record.

Judgment reversed and cause remanded.

Judges Bay and Dryden concur.