77 Mo. App. 213 | Mo. Ct. App. | 1898
Cash & Haines sold and delivered to plaintiff a stock of goods. Afterwards, McDonald & Company with three other creditor firms of Cash
The statutes, section 4430, Revised Statutes, provide : “T(he jury on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, give damages, in the nature of interest, over and above the value of the goods at the time of the conversion.” If the issue of the fact had been submitted to a jury to determine instead of to the court it is clear that the declaration would have been improper. State ex rel. v. Hope, 121 Mo. 34; Carson v. Smith, 133 Mo. 606; Hawkins v. Press Brick Co., 63 Mo. App. 68. But it is contended that as the issues of law and fact were intrusted in the present case to the court the statute already quoted is inapplicable. To this contention we are unable to agree. No reason is seen why
The defendants next contend that they made a tender to plaintiff of a certain amount of money, attached to which was the condition that if the same should be accepted by him it pe jn full discharge of his claim for damages against defendants. They also further contend that the evidence tends to show that the plaintiff accepted the tender and that therefore the acceptance thereof, with the condition attached, was an acceptance of the condition. St. Joseph School Board v. Hull, 72 Mo. App. 403. But on turning to the record we are unable to discover that this issue was in any
But on account of the error in giving the plaintiff’s said instruction number 3, the judgment will be reversed and cause remanded.