Foster v. Kirby

Bates, Judge, delivered the opinion of the court. The statement of the case filed by the appellant is adopted as a correct statement of the case. This case must be reversed because of the refusal of the court below to grant defendant’s demand that the jury should consist of twelve persons. (Vaughn v. Scade, 30 Mo. 600.) The instructions given at the trial were such as might well mislead the jury. They should have declared more explicitly, that, to enable the plaintiff to recover the money paid by him, it should appear that the money was paid under an actual mistake as to the amount which he owed the defend [499] ant when he made the payment to him; for, if he did owe the amount paid, it is immaterial that the note was for a less amount; if he paid only what was justly due, he can recover no part of it back. The other judges concurring, the judgment below is reversed and cause remanded.