Henry v. Bassett

Ellison, J.

This cause was before the supreme court, and is found in 75 Missouri Reports, page 89. A full and complete history of the case may be had by reference to that report and the case of Henry v. Mount Pleasant Township (70 Mo. 500). After a reversal of the cause in the supreme court the answer was amended and a portion thereof stricken out, the objection to which has not been saved. The instructions are lengthy and will not be set out here, as we consider the action of the court in giving those for plaintiffs, and refusing those offered by defendant, excepting the eighth, as fully justified by the decision of the supreme court. The warrant issued to defendant, he admits, has been paid to him. The trial, in the main, has been in harmony with the enunciation of the supreme court.

There does appear to us one error committed against defendant. The amended answer sets out that when the seven thousand dollar warrant was issued to defendant, plaintiffs’ testator procured, and assisted in procuring, the issuance of separate injunction proceedings, designed to annul and cancel the warrant, and that, in order to obtain the benefit thereof, defendant was compelled to defend these injunction suits, and necessarily expended, in such defence, three hundred dollars.' The evidence sustains this allegation without contradiction. The court refused an instruction, number eight, on this branch of the case. As this expenditure was necessary to the preservation of the fund, the half of which plaintiff is seeking, we think- it should be allowed against plaintiffs, especially as plaintiffs’ testator was the cause •of the proceedings, and in consequence of the expenditure. As the cause was, in all other respects, properly tried, most of the points being res adjudicate we will affirm the judgment, the cost of this appeal being taxed . against plaintiff, if he will remit three hundred dollars,' and the interest thereon, within ten days. If the remit- , titur is not entered, an entry of judgment of reversal of ■»the judgment, and remanding of the cause will be en-

tered.

All concur.