Holt v. Morton , 53 Mo. App. 187 ( 1893 )

Biggs, J.

— On the third day of May, 1888, the defendants executed and delivered to the plaintiff their promissory note for $500, bearing interest from its date at the rate of ten per cent, per annum. The plaintiff alleged that the note was lost. The defendants admitted the execution of the note, but denied that it was lost. Bichard Morton, who was the principal in the note, claimed that on the fifth day of February, 1890, he paid to the plaintiff the sum of $390, which was entered as a credit on the note, and that on the thirteenth day of October following he paid to the plaintiff the balance due, took up the note and destroyed it. The plaintiff admitted the credit of $390, but claimed that the money was paid in October, 1890, and not in February, 1890, as claimed by Morton. The plaintiff denied that any other payment had been made. The case was tried on the eleventh day of February, 1892, and the jury returned a verdict against the defendant for $241.60. The defendant has appealed, and argues for a reversal upon the sole ground that the finding of the jury is unsupported by the evidence.

An examination of the evidence, which is set out in full in defendants’ brief, has convinced us that the result reached by the jury cannot be sustained on any theory which is consistent with the plaintiff’s admissions and the uncontroverted evidence in the case.

The plaintiff and the defendant Morton were called as witnesses, and they contradicted each other as to the date of the credit of $390. The defendant said that he paid the money on the fifth day of February, 1890; that on the thirteenth day of October following he paid the balance due on the note, amounting at that time to about $225, and that he received the money with which to make the last payment from the sale of some mules. It was admitted that the mules were sold on the eleventh day of October, 1890. Tbe plaintiff testified that the-$390 was paid in'October, 1890, and that the money was received by Morton from tbe sale of tbe mules. It will be perceived that under tbe plaintiff’s admissions bis case is discredited, unless tbe money wbicb represents tbe credit for $390 was in fact paid in October, 1890, and that it was tbe money wbicb Morton received from tbe sale of tbe mules. Therefore, if tbe jury found that tbe payment of $390 was made on tbe fifth day of' February, 1890, -then tbe finding in favor of tbe plaintiff for tbe balance due was unwarranted, as tbe plaintiff admits that be received enough money from Morton in October, 1890, to pay whatever was then due on tbe note.- That tbe jury did so find is almost conclusively shown by tbe amount of tbe verdict; for if tbe payment was made on tbe eleventh day of October, 1890, and tbe jury so found, then tbe finding should have-been for $263 instead of $211.60. Tbe difference between these amounts represents very nearly tbe interest on $390 from February 5th to October 11th, thus showing with reasonable certainty that tbe jurors found that, tbe date of tbe credit was as claimed by Morton, and that their calculation of tbe amount due on tbe note-was made on that basis.

This conclusion is very much strengthened by other evidence. When tbe whole evidence is considered, it is quite difficult to understand bow the jurors could have arrived at a different conclusion as to the-date of tbe credit. For instance, tbe plaintiff admitted that tbe $390 were paid before Morton’s son started to-California. It was an undisputed fact that tbe son started to California in tbe latter part of February, 1890, and was seen in California by an acquaintance-about tbe tenth or twelfth day of March, 1890. Tbe plaintiff admitted that be received tbe money before be built a certain bouse for bis son. Tbe evidence of tbe carpenter who built the house, as well as that of the lumber dealer who sold the lumber, shows that the house was built in the latter part of February, 1890. The plaintiff says that, at the time Morton paid the money, the latter calculated the interest then due on the note and ascertained that it amounted to about $90. This was within $2 of the accrued interest on February 5, 1890. The plaintiff admits that at the time he thought the computation of the interest was correct.

We are, therefore, fully justified in the statement that the jury found the date of the credit to have been February 5, 1890, and, having so found, they ought under the conceded facts to have found that the note was paid off in the month of October following.

With the concurrence of the other judges,

the judgment of the circuit court will be reversed, and the cause remanded. It is so ordered.