Corbitt v. Mooney

ELLISON, J. This is an action on a promissory note for $300 and interest. The judgment in the trial court was for plaintiff. Defendant was a surety and admitted the execution .of the note but claimed that he signed it without any consideration long after it had been executed and delivered to the payee. The court instructed the jury at plaintiff’s instance to “find for plaintiff in the sum of five hundred and twenty-two dollars and fifty cents,” unless defendant was found to be a surety signing without consideration. It was the province of the jury to calculate the amount due and the court should not have directed what amount the verdict should be. Cates v. Nickell, 42 Mo. 169; Burghart v. Brown, 60 Mo. 24; Dyer v. Coombs, 65 Mo. App. 151; Poulson v. Collier, 18 Mo. App. 583; Ryors v. Prior, 31 Mo. App. 555. It is just as much a violation of the proper practice for the court to first calculate the amount of a note and interest and [648] then direct the jury to find that amount, as it would be to do so after the jury had found generally for plaintiff without stating an amount. The usual practice in giving a peremptory instruction to find for plaintiff on a promissory note, is to direct a finding for the amount of the note and interest without stating in advance what that amount is. The record as presented here does not show proof of plaintiff being administrator. It appears that on sustaining an objection to oral testimony of plaintiff’s appointment; of the inventory, etc., counsel then said he was “willing that the records may be considered in evidence subject to any objections that may be made.” But it nowhere appears that the records were produced, or what they contained. Whatever they may have shown is not made to appear in this record. In such state of the record it was error to assume, in instructing the jury, that plaintiff was the administrator. Defendant complains that the court refused to explain to the jury that the payee of the note being dead the defendant could not testify and that this had a tendency to prejudice the jury. If defendant had offered himself as a witness and he had then been excluded on account of the opposite party being dead, the jury would not have required any further explanation. The opening and closing of the argument should be governed by the discretion of the trial court. The judgment will be reversed and the cause remanded. Smith, P. J.} concurs; Gill, /., absent.