102 Mo. 299 | Mo. | 1890
— Proceedings before justices of the peace are construed liberally in accordance with the spirit of the legislation investing them with jurisdiction.
A statement of claim, in beginning such an action as this, in such a court, need merely be definite enough to fairly inform defendant of the nature of plaintiff’s demand and to'furnish a sufficient basis for a plea of former adjudication in event a final judgment be rendered.
Such was the last authoritative ruling of the supreme court prior to the decision of the Kansas City court of appeals in this- case. Butts v. Phelps (1886), 90 Mo. 670.
We consider that the statement in the present action comes up to the standard indicated, and is sufficient.
' II. There was no dispute at the trial over the fact of the contract sued upon, or as to its terms as stated by plaintiff. The evidence of both parties was aimed at the substantial difference between them, namely, whether or not it had been performed on plaintiff’s part. As to this issue the testimony was conflicting and the instruction, numbered 2, submitted it fairly to the jury.
III. The purport of plaintiff ’ s evidence was that, when he had dug the well as agreed, defendant was to give him “ a certain cow and $15” as compensation; yet he offered no testimony of the value of the cow. But
The animal, however, was a part of the consideration which became due on the performance of the contract. The jury evidently fixed its value at the sum of $29.40 by some process of reasoning or inference, or by personal knowledge, not disclosed by this record.
But to the extent of $15, at least, the verdict was fully supported by the law and the evidence. If defendant objected to the jury’s assessment of $29.40 additional, as the equivalent for the cow, he should, in some way, have called the attention of the trial court, in his motion for a new trial, to the excess in the damages awarded. Ridenhour v. Railroad, ante, p. 270. This he did not do. None of-the grounds of that motion can possibly be construed as alluding to excessive damages. So that point is not now available to defendant in this, court. Vineyard v. Matney (1878), 68 Mo. 105.
Had such a ground for new trial been assigned in the motion, plaintiff could, at once, have removed the objection by reducing the amount of the finding to. $15, by a remiititior. But, as defendant made no such objection, plaintiff, as well as the court, in the peculiar case here presented, might justly have inferred that defendant took no exception to the assessment of value of the cow.
IY. But the learned appellate judge, who had the cause transferred to this court, seems to have thought that plaintiff could not recover, because he offered no proof of a demand of defendant for the cow before the institution of this action.
Without deciding whether or not such demand was necessary under' former rulings of this court on the subject (Cornelius v. McDonald (1828), 2 Mo. 55; Rollins v. Claybrook (1856), 22 Mo. 405), it is enough to say that, even if it were, the objection of a want of demand cannot be raised in an appellate court for the first time. Folden v. Hendrick (1857), 25 Mo. 411.
The court gave no instruction on the proper sum to be awarded in event of a finding for plaintiff, and defendant asked no such direction to the jury. So the rulings on the instructions do not raise the point referred to.
We, therefore, cannot properly interfere with the verdict, in this state of the record, merely because it may seem to be for somewhat too large an amount under the testimony. This court, in cases such as this, is authorized to review only such exceptions as shall have been expressly decided by the trial court. R. S. 1889, sec. 2302 ; Pickle v. Railroad (1873), 54 Mo. 219.
The judgment of the circuit court should be affirmed, and the cause is remanded to the Kansas City court of appeals with directions to enter an order to that effect, with the assent of all the members of this court.
