Currier v. Lowe

32 Mo. 203 | Mo. | 1862

Dryden, Judge,

delivered the opinion of the court.

The defendant urges two grounds of complaint against the proceedings of the Circuit Court, which we will notice in their order. First, that the court excluded the evidence which the defendant introduced to prove that the arbitrator had improperly refused him credits in the award to which he was entitled; and, second, that the court gave an improper instruction at the instance of the plaintiff. A third ground why the judgment of the Circuit Court should be reversed, viz., that the arbitrator exceeded his authority in awarding costs in the case, is urged by the defendant; but the point not having been made in the lower court by demurrer, answer, motion, or otherwise, the practice of this court has become so well settled, that, whether there was error in the matter or not, we would not feel at liberty to disturb the judgment for that cause, and will, therefore, take no further notice of the question.

1. An examination of the answer will show that it sets up no real matter constituting a defence ; makes no objection to the award declared on, but spends its force in denying, first, the submission alleged; second, the mutual promise of the parties to abide the award; and, third, that an award was made. The defendant having staked his whole defence upon the denials of the allegations of the petition, cannot be allowed on the trial to turn himself about and make a case by the evidence not made by the pleadings. If such a practice were tolerated, it would lead to inextricable confusion in the trial of causes, and render pleading a mere cheat and snare. The evidence excluded was not only not applicable to any issue made in the cause, but was in direct conflict with the state of case made by the answer. The answer denied that an award had been made; the excluded evidence admitted the award, but sought to show it was wrong. If the defendant meant to rely upon the proposed defence, he ought to have laid the foundation for the introduction of the evidence to support it by appropriate allegations in his answer ; but having failed to do so, whatever of merit there may be in it we cannot relieve him.

2. As to the second error complained of, we see nothing objectionable in the declaration of law in the nature of an instruction given by the court.

Let the judgment of the Circuit Court be affirmed;

the other judges concuring.