3 Mo. 98 | Mo. | 1832
delivered the opinion of the Court.
Hay sued Myers before a Justice of the Peace in an action of debt. Myers pleaded a set-off and got judgment. Hay appealed to the Circuit Court, where on a trial de novo Hay had judgment, to reverse which Myers has brought his writ of error to this Court. On the trial before the Justice, Myers pleaded a set-off of the following instrument: “ Know all men by these presents, that I, Jones Hay, have this day sold unto John W. Myers a Jack, which I warrant to be a sure foal getter, and a sound healthy Jack, and if the said Jack does not prove to be a sound Jack, then the said Jones Hay is bound to pay back unto John W. Myers seventy-five dollars with interest, this the 23d day of November, 1830,” and got judgment. On the trial in the Circuit Court, Myers offered to read in evidence the same instrument, which was objected to by Hay, and rejected by the Court, as inadmissible under a plea of set-off. Two questions are presented.
First. Whether this is a case of liquidated damages; and
Second. Whether it could he given in evidence without notice. We think the law is with the appellant on both questions. It is clearly a case of liquidated damages, and we incline to construe the statutes so as to .admit the parties to the same rights in pursuing their claims, and making their defences in the .Circuit Court, and the same course of proceeding that is allowed before the Justice.
The judgment of the Circuit Court is therefore reversed, and the cause remanded.