88 Mo. App. 636 | Mo. Ct. App. | 1901
A careful examination of tbe record discloses that tbe two diverse versions of tbe transactions arising upon evidence of tbe respondent and appellant, respectively, were submitted to tbe jury by appropriate instructions. Tbe only question wbicb presented any difficulty was tbe ruling of tbe trial court when tbe certified check, for tbe amount tendered appellant, was offered in evidence by respondent and objected to by appellant on tbe ground that it did not show a tender of any sum. This objection would have been doubtless sustained upon tbe familiar ruling that sucb an instrument constituted no tender valid in law for tbe sum for which it was drawn, if it bad not appeared from tbe testimony of appellant, himself, that be bad not objected to tbe check on that ground when it was proffered to him nor insisted upon tbe production of tbe money itself. Under these circumstances there was no error in the ruling of tbe trial court permitting sucb check to be read in evidence. Berthold v. Reyburn, 37 Mo. l. c. 595.
Appellant also complains of tbe judgment of tbe court in that it was not rendered for tbe full penalty named in tbe bond, with a further award of execution for tbe ^damages assessed by tbe jury. This technical defect in tbe judgment is not available to tbe appellant inasmuch as be could not be prejudiced by having a judgment against him for a lesser amount than should have been rendered according to tbe terms of tbe bond in suit and for tbe further reason that tbe execution will be necessarily restricted to’ tbe damages assessed by tbe jury for wbicb tbe actual judgment was given. Tbe result is that tbe judgment herein is affirmed.
