Middleton v. Frame

Ryland, Judge, delivered the opinion of the court. The new code gives great latitude to the inferior courts in allowing amendments. (Art. 2, § 5.) “The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any respect material to the case, or by conforming the pleading or proceeding to the facts proved.” This entire article is devoted to mistakes in pleading, amendments and new trials. Heretofore, the courts were loth to allow amendments in suits by attachments. Such suits were held to be of strict law. For the last twelve or fifteen years, the decisions of our courts have been much more liberal, and the acts authorizing the proceedings by attachment have, in some measure, been declared reme [414] dial and deserving of liberal construction. See Tevis, Scott & Tevis v. Hughes, (10 Mo. Rep. 381.) This new code declares that “ suits maybe brought by attachment in the cases, and conducted in the manner authorized by statute in such cases ; provided, that the pleadings and procedure shall be, as near as may be, according to the provisions of this act.” (Art. 5, § 15.) In the opinion, then, of this court, the Circuit Court committed no error in allowing the various amendments in the proceedings before it. These amendments were not so made as to injure the defendant-. They were obviously designed to further justice, and to make a speedy termination of the matters in dispute. The court gave the several instructions prayed for by the parties, which are as follows: “1. That if the jury believe from the evidence, that defendant furnished to plaintiffs the articles and money mentioned in the off-set, or any of them, they will allow him therefor the value thereof, as an off-set against said notes, if the same do not exceed the sum due by said notes ; if the value thereof exceeds the sum due by said notes, they will find in favor of defendant for such excess, unless the jury further find that said defendant, Frame, delivered said articles to plaintiffs in payment for an account that plaintiffs then held against defendant.” “2. If the jury find that, at the time said Frame delivered to plaintiffs the property and money mentioned in his set-off, there were mutual accounts between plaintiffs and defendant, they will find for defendant the amount of the money, and the value of the property he delivered plaintiffs, as charged in his off-set, and they will exclude from their consideration the account filed with the plaintiff's replication, and all evidence relating thereto, unless the jury further find from the evidence that said property and money were delivered by defendant to plaintiffs as a payment on said account.” The rule of law is properly stated in the plaintiffs’ instructions. If the party paying fails to designate or direct the [415] payment to be placed to bis credit on a certain or particular demand, and there be several demands against him in favor of the creditor, then, in the absence of any direction how and where to give credit, the creditor may place it as a payment on any of his demands at his own option. There is nothing, then, in the objection by plaintiff in error against these two instructions of the plaintiffs below. If the instructions given for the defendant below contain any principle seemingly in contradiction to the instructions of the plaintiffs, and, consequently, become thereby erroneous, the error, if there be any, is in favor of the defendant, and cannot be set up here by him against the judgment below. These instructions, to say the least, were as favorable as tha' facts and the law would authorize for the cause of the defendant ; and if the jury still found against him, it is owing to their estimate of his conduct, when the account was shown to him», with the credits and his acquiescence or silence on the subject. Upon the whole case, it is the opinion of this court that the-judgment below should be affirmed. Let the judgment be affirmed, the other judges concurring.