187 Mo. App. 462 | Mo. Ct. App. | 1915
The only thing filed by the respondent in this court is a motion to affirm the judgment, accompanied by a manuscript brief in support of
Under- these facts the motion to affirm the judgment must be overruled. The only basis for a motion to affirm a judgment is the failure of the appellant to perfect his appeal in the manner and within the time prescribed by sections 2047, 2048, Revised Statutes 1909, and the first of these sections requires the motion to affirm to be accompanied by and be based on a cer
It is true that the proper and timely filing and overruling of the motion for new trial, the taking of an appeal and the filing of the bill of exceptions are matters of record proper. It is not' claimed, however, that the record in the trial court fails to show that these steps were duly and timely taken. All that respondent claims is that the appellant has so printed his abstract of the record as not to show these matters outside of the bill of exceptions. Rule 32 of this court expressly provides that when the appeal is by the short form, as in this case, the appellant need not abstract the record entries showing the steps taken to perfect the appeal or to file the bill of exceptions. A mere statement that the appeal was duly taken and the bill of exceptions duly filed is sufficient in the appellate court, unless the contrary is shown. The proviso to rule 15 of this court is to the effect that it will be taken as sufficient if
The suit is on a promissory note for $490. The defense is a failure of consideration, in that the note sued on was given in part payment of a jack sold by plaintiff to defendant with a warranty that the jack was a good breeder and that said warranty failed and the jack proved to be worthless. The whole purchase price of the jack was $600, the other $110' being paid with a horse taken at that value. The defendant does not ask for a rescission of the sale and the return to him of the $110 paid in addition to the cancellation of the note sued on, bnt does by way of counterclaim ask for damages in “that defendant has been required to keep, care for, and feed said jack from May 19,1908, to date
While the evidence is conflicting, there is abundant evidence to sustain defendant’s contention that the jack was a very poor breeder and was of little, if any, value for that or any purpose. If, therefore, the issues were properly submitted to the jury the judgment should be affirmed.
There is some evidence that when the note in question became due, some five months after the sale of the jack, the defendant refused to pay this note on the ground that the jack was not according to the warranty and that the plaintiff then offered to rescind the sale, take back the jack and return to defendant the entire consideration. Defendant’s evidence on this point is that the plaintiff offered to return this note in exchange for the jack, but not to give back the horse he had received or its value. This issue, however, was submitted on an instruction given for plaintiff and plaintiff cannot complain here because the jury believed the defendant’s evidence on this point.
The evidence in the case shows that the defendant kept the jack after he discovered that such jack was not as warranted; in fact, the defendant never offered to return the jack and never demanded a rescission of the sale and return of the purchase money. He kept the jack for more than two years and it then died in his possession. The plaintiff is, therefore, correct in contending that as defendant elected to keep the jack he must be held to have done so at whatever was its reasonable value and can defeat the purchase price only to the extent of the difference between the value of the .jaekashewaswhen received and what would have been his value had he been as warranted. [St. Louis Brewing Ass’n v. McEnroe, 80 Mo. App. 429; Mark v. Cooper
As before stated, the defendant kept this jack for more than two years and until he died, and, by an instruction given for the defendant, the jury were told that if the jack proved to be so worthless as not to pay for his keep, “then you will find the issue on defendant’s counterclaim for whatever sum, if any, you may find and believe from the evidence defendant was required to and did expend in taking care of, keeping and feeding said jack from the time defendant received said jack until the time he died not to exceed $450.” The plaintiff, by instructions asked and refused, tried to limit the damages on the counterclaim for keeping the worthless animal to the time prior to defendant’s' discovery of his worthlessness. One cannot voluntarily
The case need not, however, be reversed and remanded for a new trial if the defendant is willing to remit that part of his recovery. If defendant will, therefore, within ten days remit in this court the amount of his recovery on the counterclaim, $110', a judgment will be entered here for defendant on the note sued on; otherwise the cause will be reversed and remanded.