Barry v. Close

BLAND, J. This suit, arising in a justice court, is to recover the sum of $9.40, being the balance due plaintiff from defendant on a pasturage bill. There was a verdict in favor of defendant and plaintiff has appealed. It is urged that the court erred in refusing to give two of defendant’s instructions, which amount to peremptory instructions to find for plaintiff in some amount. Defendant’s evidence tends to show that he met plaintiff on the street and gave him a check for.$6, the balance he claims was owing upon the bill, which check was marked “paid in full;” that plaintiff took the check, looked at it, said nothing and did not at that time offer to return it; that the next day after this occurrence plaintiff came to him and told him that he would not cash the check for the reason that it was marked “paid in full.” Plaintiff testified that after he received the check he walked a few steps while opening the check and found that it was marked “paid in full;” that thereupon he called to defendant to come back, that he could not accept the check and that he tendered the check to defendant, claiming that the balance on the pasturage bill was $9.40. Plaintiff brought suit in a justice court for $9.40 and filed the check with the justice but it was not marked “filed” by the latter. The case was appealed to the circuit court and there marked “filed” by the circuit clerk and introduced in evidence by plaintiff in support of his case. At no time did plaintiff tender the check to defendant after he filed suit. It appears that the check is still in the possession of the circuit court. It is true that the general rule is that a check taken for a debt does not amount to payment unless the credi *542 tor expressly agrees to take it as suck, and there being evidence that the check was not so accepted, plaintiff had the right .to bring this suit. This is true though he actually accepted the check, unless it was accepted under an agreement expressed or implied that it was in payment. However, before he was entitled to recover, it was necessary for plaintiff to produce the cheek at the trial and offer to surrender or cancel it (Schepflin v. Dessar, 20 Mo. App. 569, 574), or at least to surrender it into court at the trial for disposal by the court. [21 R C. L., sec. 58, pp. 59, 60; McMurray v. Taylor, 30 Mo. 263.] But, as before stated, nothing of the kind was done by the plaintiff. But plaintiff states that the check is now in the hands of the court and no harm can come of it to the defendant. We are not convinced of this. Had the instructions been given and a verdict for plaintiff returned, the check still would have been plaintiff’s, at least as between himself and the court, and he might have withdrawn it and suit might thereafter have been brought by an indorsee against defendant on the check. The court, therefore, properly refused the instructions. The judgment is affirmed. Arnold, J., concurs; Trimble, P. J., dissents in a separate opinion.