65 Mo. 598 | Mo. | 1877
The First National Bank of Kansas City was> ^ plaintiffs, made a defendant, but they now insist that the bank has no right of appeal from the judgment against its property.
The account filed with the clerk, under the circumstances, was specific enough. The only item about which there can be any doubt, is the first, for stone , , „ furnished bank building as per contract, &c. There was evidence tending to show, not only that the bank was apprised of the terms of the contract between the contractors and plaintiffs, but had agreed with the contractors to the sum of $7,000.00, as compensation to plaintiffs for the labor and materials mentioned in the first item.
The fourth instruction for plaintiffs is not objectiona ble. It does not assert that the bank is liable to plaintiffs ^01’ ^he price of the materials and labor agreed upon by the contractors and the plaintiffs, without regard to their actual value. There was no evidence introduced or offered to show that the work and materials were worth less than the contract price, and the question discussed by appellant’s counsel, and in the Pennsylvania cases cited by them, is not presented by the fourth instruction, or anywhere in the record, and therefore will not be determined in this cause.
That an attorney is surprised by the rulings pf the court, or by instructions given, is no ground for a new 6. surprise. trial, but in this case, the only effect of the surprise alleged was to prevent defendants from offering the evidence, which in our view of the case, the court would have properly excluded. With the concurrence of the other judges, the judgment is affirmed.
Arrirmed.