Logan v. Enterprise Investment & Improvement Co.

Smith, P. J. This was an action on an account for lumber sold and delivered. The answer in effect admitted the sale and delivery of the lumber but alleged that it was sold and delivered to defendant to be used in the construction of sidewalks in the town of Richards, of which defendant was the founder and promoter, and that it was to be paid for out of the proceeds of the sale of lots to be made by defendant; that through no fault of the defendant it had been unable to sell any of the town lots and it was, therefore, not liable for the lumber; that defendant finding itself unable to sell the lots tendered back to the plaintiffs the lumber which was accepted by them, etc. The reply controverted the special defenses of the answer. There was a trial and judgment for the plaintiffs, to reverse which judgment defendant appeals. I. The defendant by its appeal challenges the judgment on several grounds, the first of which is that the trial court erred in admitting evidence of a proposed [513] settlement and compromise of the plaintiff’s claim' against defendant. While it is likely this evidence was-improper, yet, as no objection was preserved by the bill of exceptions to the action of the court in admitting the same, “that matter is not subject to review by us.”' Demetz v. Benton, 35 Mo. App. 559; Griffith v. Hanks, 91 Mo. 109; Peck v. Chouteau, 91 Mo. 138; Allen v. Mansfield, 82 Mo. 688. II. Nor can we review the action of the • trial court in giving the instructions asked by plaintiffs, for the reason that there was neither exceptions taken and preserved to the action of the court in giving the same,, nor was the attention of the court called thereto in.the-motion for a new trial. Ritzinger v. Hart, 43 Mo. App. 183; Morgan v. Rice, 35 Mo. App. 591; State v. Griffin, 98 Mo. 672. III. The two instructions given for the plaintiffs-with the one given for defendant covered the issues made by the pleadings and the evidence. The second instruction refused by the court for the defendant was-properly refused; for the reason there was no substantial evidence to authorize the giving of it. Besides, it was so worded as to mislead the jury had there been evidence, as there was not, of a tender and acceptance of the lumber. It directed the jury that if the plaintiffs-knew at the time the Timber was delivered, that it was-to be cut up for use, such cutting up and using would not render defendant liable. This without qualification was calculated to mislead the jury. The only evidence of tender and acceptance was that Mr. Royce, president of the defendant, got something like $10 worth of lumber which was reported to plaintiffs, who-gave defendant credit therefor, as shown by the account-sued on, and charged the same to Mr. Royce’s account. So that in any event no injury resulted to the defendant on account of the action of the court in refusing the plaintiffs’ second instruction. [514] The third instruction asked by defendant was but a repetition of the first and was very properly refused. An examination of the entire record has convinced ns that the case has been fully and fairly submitted to the jury, and that there is no just ground for complaint. It follows that the judgment must be affirmed. All concur.