Musick v. Musick , 7 Mo. 495 ( 1842 )

Opinion of the Court by

Napton, Judge.

This was an action before a justice of the peace, which, by appeal, was transferred to the court of common pleas, for StrLouis county. On the trial before the court of common pleas, the plaintiff proved his account by the defendant; whereupon, the defendant’s counsel offered to prove, by cross-examination, a set-off claimed by defendant, but this, court would not allow.

" 'The defendant then proved by another witness, that the plaintiff (defendant in error) told witness, that in consideration the said defendant, in case of judgment obtained in his favor against John Munday, before James C. Musick, a justice of the peace, would give the said John Munday'time on said judgment, he the said plaintiff, Volney C. Musick, would see said judgment against said Munday paid, and that D. R. Musick, did accordingly give time to said Munday on said judgment.

The court of common pleas gave judgment for the plaintiff, and defendant filed his motion for a new trial, for the reason, that the verdict was against law and evidence, and a°a*ast ^ie weight evidence. The court overruled the and judgment went for plaintiff.

inencedbefore a justice of the the plaintiff mand3byS the defendant, the be allowed at íoprove61>™6 his own testi-claimed by him against The defendant same'situaüont0 by the statute, plaintiff is, cItablish<Shis demand by the poritefparly^ before either can prove his demand or set oathythe or party must to testify.U:POn Sec. ih, H. S. 1835, p. 361.) A parol plamtiffwouid give-Btimeon tairmf^against him.defendant would see the judgment paid, is a collateral undertaking to.pay the debt of another, and within the statute of “contracts and promises.’'’

The plaintiff in error, relies chiefly, on two grounds for reversing this judgment, first, it is objected that the defendant' was not allowed to swear to his own set-off. His right-to do so, is placed upon the general principle, that where a pavty js made a witness for one purpose, he becomes a witness for all purposes. Page v. Hanky, 6 Mo. Rep., 433. This is the general doctrine, but our statute regulating this matter provides, “If there be no evidence given to establish any demand founded upon contract, or to establish any set-off,. or ^ ev'idence given be insufficient for that purpose, the justice, may upon the application of the party offering such demand or set-off, order the opposite party to be sworn as a witness in relation thereto, if the party called on refuse, the jus tice shall allow the party offering the demand or set oil sworn. &c.” Sec. 16, p. 461. By this provision the defendant, wishing to prove his set-off, is placed in the same situation in which he is, who seeks to establish his demand,and. ^8^0!e e^er can prove their own demands or set-off, the op-poriie party must be called. The court is of opinion, that no error was committed by the court of common pleas in refusi[ng the cross-examination proposed. " 1

... , The judgment of the court oi common pleas is also sought be reversed, because the court refused'the plaintiffin error a new trial. Admitting.’that the defendant’s proof of set-off was sufficient to entitle him to a verdict, the proofs Sone t0 Jury without objection, yet would this court reverse the judgment for the purpose- of letting in a> ¿e|gnce which must be unavailing? The promise of Volney Musick was a collateral undertaking to pay the debt of atl0^ler’an(^ being:,within the statute was of no validity, and it is not perceived how the-plaintiffin error could de-r‘ve anY benefit from a reversahof the judgment!

Judgment affirmed, °