Gamster v. Shannon

2 Mo. 76

• Court: Supreme Court of Missouri
• Decided: December 15, 1828
• Status: Published

Opinion

Tompkins, J.,

delivered the opinion of the Court.

*

Canister filed his declaration in assumpsit against Shannon. It consisted of three--, counts. Tile two first counts are special, and the;third is a general count of mcfeMte". tus assumpsit. The-defendant filed the plea of noñ-assumpsit, with a notice of set»., off; the jury found that the defendant did .not undertake and promise, &c., and that the plaintiff was indebted to the defendant-in the sum of $248 60, for which sum, judgment was given by the Circuit Court..

To support his declaration, the plaintiff in. the. Circuit Court (who is also, plaintiff iil error) produced a deed to Shannon for certain tracts of land ;.'.the consideration for the conveyance of said land, is in said deed stated to> be, that Shannon had secured: to be paid to- the plaintiff, the- sum of fifteen hundredidollars;... the Circuit Court re-. fused to receive this deed in evidence under-ithe two.apecial counts, but permitted it to be read in support of the third count:

In the opinion of this Court, the plaintiff has lost nothing by-.the refusal of the' Circuit Court to permit the deed' to be given in evidence under the first two counts,, for no evidence of any other promise to -pay money was offered, than what was re---(9&) cited in the consideration of the deed above mentioned; even then, .were thes; evidence improperly rejected, the Court is not disposed to disturb the judgment of tha Circuit Court, inasmuch as the plaintiff has had the full benefit of his evidence-

The judgment of the Circuit. Court is affirmed,.

Wash, J., appears not to-have been.present during, this term,.