Overstreet v. Brubaker

Missouri Court of Appeals

Overstreet v. Brubaker

71 S.W. 1090, 98 Mo. App. 75, 1903 Mo. App. LEXIS 47

DecidedFebruary 3, 1903

StatusPublished

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Bluebook

Overstreet v. Brubaker, 71 S.W. 1090, 98 Mo. App. 75, 1903 Mo. App. LEXIS 47 (Mo. Ct. App. 1903).

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Opinion

REYBURN, J.

For reasons beyond their control, the record upon which this case is submitted for the decision of this court must be as unsatisfactory to the [77]*77counsel therein as it is defective and deficient in not setting ont the canse, of action nor the full evidence introduced at the trial. The suit seems to have been brought upon a current account made up of a number of items, with credits of partial payments, leaving a balance of $44 unpaid. The plaintiff, a registered pharmacist, testified to the correctness of the account, the' non-payment of the balance, the admission of its correctness by defendant, the payment by the latter of sums on account,' and on cross examination acknowledged that items marked merchandise in the account consisted of whiskey sold defendant, none of which was sold by the gallon, a part of which was sold him by the drink to be drank in the house, for which he had no prescription, but for some of the whiskey sold he had a prescription. This appears to have been all the evidence and all the substantial portions of the record, and the court rendered judgment for the plaintiff. In this condition of the record we are unable to determine what part in amount or value, if any, of the account constituted an illegal and invalid consideration and improper sale of so-called merchandise, to enforce payment for which plaintiff would be remediless before a legal tribunal in this State, and for aught to the contrary shown, plaintiff might have been a licensed dram-shop-keeper, and the burden of establishing the tainted character of the cause of action was manifestly thrown on defendant. Judgment will* therefore be affirmed.

Bland, P. J., and Goode, J., concur.

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REYBURN, J.

For reasons beyond their control, the record upon which this case is submitted for the decision of this court must be as unsatisfactory to the [77]*77counsel therein as it is defective and deficient in not setting ont the canse, of action nor the full evidence introduced at the trial. The suit seems to have been brought upon a current account made up of a number of items, with credits of partial payments, leaving a balance of $44 unpaid. The plaintiff, a registered pharmacist, testified to the correctness of the account, the' non-payment of the balance, the admission of its correctness by defendant, the payment by the latter of sums on account,' and on cross examination acknowledged that items marked merchandise in the account consisted of whiskey sold defendant, none of which was sold by the gallon, a part of which was sold him by the drink to be drank in the house, for which he had no prescription, but for some of the whiskey sold he had a prescription. This appears to have been all the evidence and all the substantial portions of the record, and the court rendered judgment for the plaintiff. In this condition of the record we are unable to determine what part in amount or value, if any, of the account constituted an illegal and invalid consideration and improper sale of so-called merchandise, to enforce payment for which plaintiff would be remediless before a legal tribunal in this State, and for aught to the contrary shown, plaintiff might have been a licensed dram-shop-keeper, and the burden of establishing the tainted character of the cause of action was manifestly thrown on defendant. Judgment will* therefore be affirmed.

Bland, P. J., and Goode, J., concur.

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71 S.W. 1090, 98 Mo. App. 75, 1903 Mo. App. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/overstreet-v-brubaker-moctapp-1903.