Moore v. Albright , 30 Mo. 249 ( 1860 )

Scott, Judge,

delivered the opinion of the court.

The account stated in the plaintiffs’ letter of July 17, 1857, prima facie showed that they were not entitled to recover. If the credit given the defendants for $188.57 loss was the same sum for which this suit is brought, the plaintiffs clearly could not recover unless they explained why they would take away from the defendants a credit which they had given them. Whether the items are identical is a question for the jury. The plaintiffs have not seen proper to have copied in the record the account on which their suit was instituted. There is evidence enough of a consideration for the credit given to the defendants contained in the plaintiffs’ letter read to the jury, if proof of any consideration was necessary.

The court erred in refusing the second instruction asked by plaintiffs. If they had given credit by mistake, or had ■ been induced to enter it on terms which were not afterwards complied with, they ought to have been permitted to show those facts. Whether there was evidence enough to sustain the defence assumed in the instruction was a matter for the jury. We have nothing to do with that. The jury will determine what weight should be given to such general declarations as were made by the witness, who was so kind as not only to testify, but to tell them the law arising upon his evidence.

The other judges concurring, judgment reversed and cause remanded.