| Mo. | Oct 15, 1847
delivered the opinion of the Court.
This was an action of assumpsit brought by the plaintiffs against the defendant in the Common Pleas Court of St. Louis. The declaration contained the common counts. Plea, the general issue, with a notice of set off. On the trial, the plaintiffs took a non-suit with leave to move to set the same aside, which they subsequently did, when the court overruled the motion, to which they excepted and appealed to this Court.
The bill of exceptions contains all the evidence given in the Circuit Court, and consists of two depositions of one John Philips. The first deposition not relating to the question raised in the instruction of the court, will not be further noticed. In the second deposition, Philips states in substance, that being indebted to the plaintiffs, by note, he had a settlement in the store of the defendant, and paid the plaintiffs some money, and executed to them a new note for $300, which was left with the defendantfor collection. That sometime thereafter, defendant called on witness and informed him that he held the note for collection, when witness paid $100, which was credited on the note. Two or three months afterwards, either the defendant or his clerk, B. T. David, called on the witness in the street for the balance of the note, saying that Lee had gone up the river and wanted it on his return. He paid $100 that evening to the clerk of the defendant and saw him endorse the credit on the note. In a few days thereafter, he paid to the clerk the balance, $125, of the note and interest, and took up his note. That the clerk to whom he made the payments was doing business in the defendant’s store as clerk.
That three or four years after the payments last named, witness received letters from both plaintiffs and defendant, inquiring of him concerning the transaction which he answered by saying that he had paid a part of the notes to the Lees and a part to the Davids.
The court thereupon instructed the jury as' follows:
If the jury find from the evidence that the plaintiffs left the note against Philips with the defendant for collection, they were bound to demand payment of the sum collected before they can maintain an action therefor; no such demand having been proved, the jury are bound to find for the defendant.
No principle is better settled than that embraced in the first part oí the instruction. No authority is necessary to establish it, as its correctness is self evident to the mind of every one; Is there any legal objec
If however, there is no evidence from which a demand can be legally inferred, the defendant may at his option let the case go to the jury under the instruction of the court that it is necessary to prove a demand, or he may, as was done in this case, ask the court to declare that upon the evidence the plaintiffs cannot recover. The instruction is then, in effect, a demurrer to the evidence, and aught not to be sustained if there is any evidence conducing to establish a demand.
Without recapitulating the evidence, we are of opinion that the only facts, upon which any reliance whatever could be placed, to establish the demand, are too remote and uncertain to be relied upon.
The judgment of the Court of Common Pleas ought to be affirmed.^—
it is affirmed.