Owen v. Vandyke , 81 Mo. App. 668 ( 1899 )

ELLISON, J.

Plaintiff sued defendant before a justice of the peace for the balance claimed to be due on a note. There were several credits indorsed on the note but defendant claimed two which were not indorsed and aggregated $46.50. These two items were all that were in dispute. Defendant-paid $90 to the constable after suit was brought and also $5 for costs accrued up to thait time. The result before the justice and in the circuit court was for defendant on the points at issue. But in the circuit court the judgment was for defendant in Ithe ordinary form where nothing is due a plaintiff. In fact, $90 was conceded to be due him, since that sum was paid to the constable.

The plaintiff contends that as there was a balance due him there should have been a judgment in his favor for that balance. We think not. The payment to the constable was the same, in effect, as a payment to the plaintiff himself. The money became the plaintiff’s and operated as a discharge of the debt to the extent of the payment, and the judgment should be just as though the payment had been made to plaintiff himself. Johnson v. Garlichs, 63 Mo. App. 578, and authorities cited; Griffith v. Jackson, 15 Mo. App. 165.

There was evidence tending to support the verdict and while strongly opposed by evidence in plaintiff’s behalf yet the case is one where the result of a jury’s consideration must be accepted as final.

Objection is made to an instruction saying that the tender was admitted. The instruction was harmless in view of the nature of the contest between the parties. Besides, an examination of the record shows enough to justify it. The evidence of tender -was ample and undisputed. It was announced to the court by one of defendant’s counsel that it was not disputed and plaintiff’s counsel made no objection. The whole case shows that it was a matter conceded.

The judgment is affirmed.

All concur.

- The foregoing opinion is modified so as to remand the cause with directions that the trial court order the constable to pay the plaintiff the sum of $90 paid to him for the plaintiff.