Compton v. Parsons

I. Sherwood, J. When a cause comes by appeal from a justice of the peace to the circuit court, it is to be tried de novo. R. S-. 1879, § 3052. And the defendant may avail himself of any defense he may have, whether offered in [457] the magistrate’s court or not. Hall v. Mills, 11 Mo. 217; Phillips v. Bliss, 32 Mo. 427. The only exception to this is, when the defendant is personally served with process he ■cannot plead in the circuit court a set-off he had not pleaded before the justice of the peace. R. S. 1879, §. 3059; Webb v. Tweedie, 30 Mo. 488. Of consequence, there was error in refusing defendant permission to show in the circuit court, and for the first time, that plaintiff was not •the real party in interest, or had not the legal capacity to sue. II. If the “ water drawer ” was worthless for the purpose for which it was purchased, this was a valid defense as showing an entire failure of consideration, and this, whether defendant returned or offered to return the machine or not, or failed to notify plaintiff of its worthlessness. Murphy v. Gay, 37 Mo. 535, and cases cited. Result: Judgment .reversed and cause remanded. All concur.