Gamache v. Grimm

23 Mo. 38

• Court: Supreme Court of Missouri
• Decided: March 15, 1856
• Status: Published

Opinion

Scott, Judge,

delivered the opinion of tlie court.

Under the answer set up by the defendants, it was competent for them to show in evidence a partial.failure of consideration. The instruction (numbered 6), given by the court, seems to inculcate the idea, that, unless there was a total failure of consideration, there must necessarily be a verdict for the plaintiff for the amount of his demand; and that the defendants were not entitled to any deduction by reason of any loss or injury they may have sustained in consequence of the unskillful manner in which the work was executed, unless it turned out that the work to them was totally worthless. In this we are of opinion, that the court erred. The pleadings and the evidence warranted the second instruction asked by the defendants, and it should have been given.

As the real sum due was $500, and the interest on it for six months, by the contract, was thirty-five dollars, it follows that twenty dollars was the excess of usurious interest, which, being deducted from the sum really due (five hundred dollars), would leave the sum of four hundred and eighty dollars to which the plaintiff would be entitled, were there no other considerations in the case.

The other judges concurring, the judgment will be reversed, and the cause remanded.