Sloan v. Frye

Gill, J. — This is an action commenced July 2,1887, before a justice of the peace, in Jasper county, on a promissory note signed by defendant, the amount of the note and interest at'date of institution of said suit being $91.05. On the return day of the summons defendant filed a set-off for $142.50, alleged to be due from plaintiff as a commission for trading plaintiff’s farm. Judgment being rendered by the justice, an appeal was taken to the circuit court, where the case was tried before a jury, on the fifteenth day of March, 1888. Defendant admitted the execution of the note and that it was due and unpaid. Defendant claimed that he had plaintiff’s farm in his hands as a real-estate agent, for sale or trade and that he caused a trade of farms to be made between the plaintiff and one N. H. Evans, and that his commission amounted to $142.50. Plaintiff denied having placed his farm in defendant’s hands for sale or trade, and introduced evidence tending to show that he first learned of Evans’ farm [527] being for trade through one Kelsey, and had gone to Evans’ house and had left word with his wife for Evans to meet him in Carthage, at the Harrington hotel, if he desired to trade farms. That on the appointed day plaintiff came to Carthage, and bn going to the hotel and not finding Evans there, he went across the square to defendant’s office, and while there met Mr. Evans, and after talking trade several days, they exchanged farms and had defendant draw up a contract between them. That Evans first learned of plaintiff’s farm being for sale or trade by card plaintiff left with his wife, telling him to meet plaintiff in Carthage. It seems that on the trial in the circuit court the jury found for the defendant on the set-off, but only for the amount of five dollars,, and rendered a verdict for plaintiff for $93.77. Judgment was entered thereon for plaintiff, and the defendant appeals. I. It is difficult to see any just ground of complaint defendant can have to the evidence given by the witness Grulick. He testified simply that he went with plaintiff Sloan to Evans’ residence, introduced Sloan to Mrs. Evans, and that Sloan there told Mrs. Evans, in the absence of Mr. Evans, about his (Sloan’s) farm. Even if incompetent or irrelevant it could not have prejudiced the cause of defendant. II. Further complaint is made of some remark the trial judge made, during the examination of witness Cunningham. Of this it is sufficient to say that the record discloses no exception thereto by the defendant, nor was attention called thereto in the motion for a new trial. Defendant can not therefore be now heard to object on that account. The alleged error should be first called to the attention of the trial court before being complained of here. McLaughlin v. Schawacker, 31 Mo. App. 375. III. Neither is there any just cause of complaint as to the instructions given br refused. The court fully and fairly presented the matters in issue to the jury. [528] Although some of the defendant’s instructions were correct declarations of the law, yet all such were sufficiently incorporated in others given by the court, and there was no error in refusing to repeat such legal propositions. Defendant’s pretended third instruction, quoted in his abstract, does not appear in the record. This pretended number 3, it would seem, is a modification of number 6, refused at the trial. If counsel desire this court to review instructions refused by the trial court, they must be correctly set out in the abstract. Upon a review of the points suggested we see no reason to disturb the judgment below, and the same therefore will be affirmed. All concur.