29 Mo. 340 | Mo. | 1860
delivered the opinion of the court.
Thére are two grounds upon which it has been urged that this judgment ought to be reversed. The first is, that the court refused to give the third instruction asked by the defendant, which, in substance, declared to the jury that, as the defendant’s counter claim for six hundred and four dollars was not replied to, they would consider it as admitted and
In relation to the first point, it seems to us that a concession of the propriety of this instruction would not lead to a reversal of the judgment. Admitting that the defendant’s answer contained new matter constituting a counter claim, within the meaning of the fifteenth section of the sixth article of the practice act, (R. C. 1855, p. 1238,) and that the plaintiff’s failure to reply brought the case within the sixteenth section of the same article, yet it could certainly tend to no good purpose, under the circumstances of this case, to send the case back to have this error corrected. The jury passed upon the counter claim under instructions from the court and rejected it. The case was tried precisely as though a replication had been put in.
The plaintiff’s bill of particulars gave the defendant credit for the six hundred and four dollars which he claimed to have advanced on the work as it progressed, and the jury allowed the same as a credit; but as they allowed the bill, after deducting the credit, they of course found against the counter claim. The counter claim set up that the work was so badly executed by plaintiff that it was worth nothing, and therefore that the six hundred and four dollars advanced ought to be returned. But the jury, under the allegations of plaintiff’s petition and the instructions given at defendant’s request, found that the work was done in a workmanlike manner, and that the prices charged were reasonable. If the case is sent back to have a formal replication filed, which, of course, would have been done on the trial but through inadvertence, we have no right to anticipate any’ different result from that reached before, unless, indeed, the verdict was against the evidence before; and that is another and distinct ground for reversal, and must stand or fall by itself.
The practice of this court in relation to the verdicts of juries, which the circuit courts refuse to set aside, is so well settled that it is needless to refer to the cases. There is
There is no ground, therefore, for disturbing this verdict on account of its being against evidence or unsupported by evidence. The jury and court before whom this case was tried understood the facts much better than we do ; but as the case has been sometime before the court, and the point
The judgment is affirmed;