Kansas City Transfer Co. v. Neiswanger

Per Curiam. This cause has heretofore been here on appeal, and is reported in 18 Mo. App. 103. It was remanded for further proceedings. [359] The second trial seems to have been conducted consistently with the ruling of this court, and we. discover no reversible error in respect of the points heretofore passed upon by this court. But as it appears from the record now before us that (the suit having been instituted in a justice’s court) the defendants deposited, as a tender, with the constable, after suit brought and before the trial, the sum of $11.88, together with the costs accrued up to that time, the plaintiff contends that the circuit court erred in refusing to instruct the jury, as requested by plaintiff, to find, at least, that sum for the plaintiff. We have passed upon this question at this term in the case of Voss v. McGuire (26 Mo. App. 452). Adhering to the ruling, and the principles therein determined, we must hold that the circuit court erred in not so instructing the jury. The .sum so paid to the constable was an admission on the part of the defendants that they owed the plaintiff that much, and the only matter at issue thereafter between the parties was as to the excess claimed by the plaintiff. No matter what the result of the trial, the sum so tendered and paid over to the constable belonged to the plaintiff. It is true that on the last trial after this tender had so remained in the constable’s hands throughout the litigation, the defendants’ counsel stated to the court: “We desire before offering any evidence to withdraw the tender made in this case.” Whether the tender was actually received back from the constable, or whether the court granted the application, the record is silent. This could not affect the right of the plaintiff, it not consenting thereto, to demand of the constable the sum so tendered. Voss v. McGuire, supra. Of course all the costs which accrued in the trial court, after the time of the tender, are taxable against the plaintiff, it having failed to recover a greater sum. It follows that the judgment of the circuit court must be reversed, and the cause is remanded, with directions to the circuit court to enter judgment for the [360] plaintiff, for said sum of $11.88, and the costs which had accrued up to the time of the tender, and to tax against the plaintiff all the costs which accrued thereafter. The costs of this appeal in this court to be taxed against the respondents.