Lyman v. Milwaukee Harvester Co.

68 Mo. App. 637 | Mo. Ct. App. | 1897

Ellison, J.

This action is based on an account and was begun before a justice of the peace where plaintiff had judgment. Defendant appealed to the circuit court where plaintiff again obtained judgment. Defendant comes here for relief.

At£?tshonapa-c‘ ori¿:na?bm.cls: I. It is first objected that there is nothing to show that the circuit court had jurisdiction on the appeal. This objection is based on the assertion that the justice’s transcript was not incorporated in the bill of exceptions. The cause is here by what is known as the short method, consisting of a certified.copy of the judgment with dates of entry, order granting appeal, etc., as provided by section 2253, Revised Statutes, 1889. The defendant’s abstract of the record incorporates the justice’s transcript and all papers filed with the justice in what appears by such abstract to be a bill of exceptions. Plaintiff filed no counter abstract and hence we must accept that of defendant as being correct. Under the provisions of the statute aforesaid plaintiff, if he denied the accuracy of defendant’s abstract, should himself have presented an abstract of the record, or an additional abstract as to that part of the record- which he claims was not truly abstracted by the appealing defendant. This would be accepted here as true, unless the appellant specified his objections thereto in writing and filed the same with the clerk of this court. If such specific objections were made the clerk would then order the clerk of the trial court to send up a certified copy of the record or that part of it which was in dispute. The provisions of section 2257 relating to • the power of an appellate court to make an order for the production of original papers or of a bill of exceptions have no application to the state of the record before us.

iñterfererice?* II. . An examination of the evidence has not led us to the conclusion that we should reverse the judgment on account of there being no evidence to support the verdict, since the trial judge has approved it by not setting it aside, though the state of the evidence is such that we deem it close to the line and we refuse to interfere with much hesitation.

RbñisanaDñoteI?: fadoneofconsld' III. Be this as it may, according to plaintiff’s own testimony, he was defendant’s agent for the sale of machines and on a settlement with defendant’s traveling agent, plaintiff kept or purchased two machines and certain extras which were to go with-the machines, giving his note for $210 for the purchase money. These extras were not furnished by the defendant. He states that they are the .foundation of his claim in this action and if they had been furnished he would not have had a claim. He was afterward sued on the note long after he should have been furnished with the extra and failed to set up such partial failure of consideration as a partial defense. We deem the mátter now to be res adjudicata and that plaintiff is barred of his right to sue upon the claim.

justices^cofirts. IY. : But it is said that defendant did not plead res adjudicata. The abstract shows that it was stated in the answer of defendant. But conceding that it does not appear with sufficient clearness that a plea of res adjudicata was formally and properly made in the answer as a technical pleading, yet the cause originated in a justice’s court where formal pleadings are not required and evidence was received without objection, of the fact that plaintiff was sued on the note and that he did not present the defense of failure of consideration but on the contrary paid off and discharged the note.

From whatever point of view in which the case presents itself on the record here, it appears that the judgment was manifestly for the wrong party.

The judgment will, with the concurrence of the other judges, be reversed. .