Sherman v. Rockwood

26 Mo. App. 403 | Mo. Ct. App. | 1887

Philips, P. J.

No candid mind, on reading this record, can escape the impression that the whole conduct of the defendant throughout this transaction was most reprehensible.

■It is true that in actions instituted in justices?' courts no formal pleadings are required, and that the general issue obtains, under which defendant may interpose any matter which goes to defeat the plaintiff’s cause of action. On a trial de novo, on appeal, the same rule would apply. The parties, if they see fit, may state their case to the court and jury. By the statement first made to the jury the defendant indicated that he tendered the general issue. He denied any liability, which implied that he put in issue the contract of sale, or something that had supervened to relieve him from ■liability. It may be conceded that he had the right, without any notification to the plaintiff previous to issue joined, to make proof of the warranty and the breach thereof. This would not defeat the cause of action. The defendant had accepted the horse with a warranty of soundness, as he claims. Courts of high authority hold .that this defence would be in the nature of a counter-claim on the contract of warranty, or by way ol recoupment of damages out of the purchase money. Speaking for myself, he might show a failure of consideration.

Be this as it may, by this defence he would logically admit the contract of sale, and rely upon a breach of its terms; whereas he openly stated to the court that his first defence was, that the whole transaction was a joke ; that, in fact, there was no contract of sale, and that (only) in the event the jury found this issue against Mm would he claim there was a sale and a breach of the warranty. By every rule of pleading and common sense these positions were irreconcilably inconsistent, and destructive, the one of the other. While under ordinary circumstances of good faith, the largest liberality is to be indulged by the courts in such trials, yet it must be in furtherance of justice.

The trial court advised the defendant of the inconsistency of the two defences, and offered to allow him to elect. If the sale was a joke, there was no sale, and no contract in contemplation of law. If there was no contract, there was no warranty. By this defence the defendant denied, in effect, the existence of a warranty. How could he state the facts in open court, and then turn around, against the legal effect of his admission, and claim there was a' warranty % On the other hand, by invoking the warranty he would admit there was no joke, that there was a sale. The court asked him to take his choice between these two destructive positions, to save the defendant from a logical felo de se. He refused the offer. Plainly he was trifling with the administration of justice, and indicating that he had no genuine defence. He was attempting to make a “ joke ’5 of a solemn judicial proceeding, and looking rather for a trap of error in which to catch the court than to vindicate any substantial, legal right. This court will not spring the trigger for him.

The judgment of the circuit court is affirmed.

All concur.