Simonds v. Oliver

1. It is not erroneous for the courts of this state to refuse, when called upon generally to do so, to draft and give instructions to juries ; they may confine their action in this particular to the giving or refusing of instructions specifically asked by the respective parties.

Appeal from St. Louis Law Commissioner’s Court. This was an action originally commenced before a justice of the peace, to recover twenty dollars, alleged to have been overpaid by plaintiff in making change. Plaintiff obtained judgment before the justice, and the cause was appealed to the law commissioner’s court. Upon the trial before the law commissioner’s court, the plaintiff introduced testimony tending to prove that defendant (Oliver) purchased of plaintiff a lamp at the price of three dollars ; that in payment thereof he offered plaintiff a twenty dollar gold piece ; that plaintiff, not' having the specie to give in change, defendant then offered him a twenty dollar bill; that plaintiff gave back to defendant the twenty dollar bill, and seventeen dollars in change. There was no evidence tending to prove that the twenty dollar gold piece ever came to the possession of plaintiff. Defendant, whose admissions constituted the only testimony introduced, declared that he had left the gold piece upon the counter of plaintiff. The defendant asked the following instructions: “ 1. If the jury believe from the evidence, that the plaintiff has failed to prove that there was an actual carrying away of the twenty dollar gold piece in question, then the jury will find for the defendant. 2. If the jury believe from the evidence, that the plaintiff has failed to prove an actual deficit on his part, then the jury will find for the defendant.” The court refused to give the instructions asked. Defendant excepted, and further asked the court to instruct the jury in some manner, without specifying any particular instruction to be given. The court failed to do so, and the cause was submitted to the jury entirely without instructions. The jury found for plaintiff, and judgment was accordingly given for him. Defendant appealed to this court. cited 3 Mo. 14; 19 Mo. 102 ; 1 Mo. 473.