Owen v. O'Reilly

20 Mo. 603

• Court: Supreme Court of Missouri
• Decided: March 15, 1855
• Status: Published

Opinion

Ryland, Judge.

The court below should have permitted the plaintiff to introduce his testimony in relation to the value of the services he had rendered the defendant. The instruction that the plaintiff cannot recover in this case, upon the proof madé, was erroneous. He was entitled to recover nominal damages at least. This instruction, then, should have been refused.

It was not a proper exercise of judicial discretion to refuse the plaintiff in this case his motion for leave to introduce this testimony. It was clearly an omission — a mere oversight — and the court ought at once to have suffered him to correct it. (Brown v. Burrus, 8 Mo. Rep. 30.) See also, Rucker v. Eddings, (7 Mo. Rep. 118.)

There could have been no necessity to have forced the plaintiff to suffer a nonsuit, when the inadvertence committed by him was so easily remedied.

The courts should exercise their discretion soundly for the advancement of right, and lend always an unwilling ear to mere technical objections, either in pleading or practice.

The judgment is reversed, and the cause remanded ; the other judges concurring.