Cook v. Clary

Ellison, J. This is an action in replevin of a pair of horses, which resulted in a judgment for plaintiff by-default in the trial court. Proof of damages was made to the court, and a finding of $10 was made by the court. Plaintiff appeals complaining of the amount of damages assessed. The defendant Clary is the constable who seized the horses in an attachment suit as the property of a third party, and Tobener is a livery-stable keeper, where the horses were kept by Clary after attaching them. Plaintiff was deprived of the use of the horses for twenty-five days, and also paid out to Tobener $25 for feeding and keeping them while held by the constable. Plaintiff was the only witness, and he stated the use of the horses for the time he was deprived of them was worth $100, which, with the $25 paid to the liveryman, made his total claim $125, though he only asked for $120 in his prayer. It appears that plaintiff was a mortgagee of the property for the sum of $125, and that by agreement he was-to use the horses in consideration that he would charge no interest on the money secured. The petition did not ask for special damages. Plaintiff asked the court to declare the law to be that he was entitled for the loss of the use of the property to whatever sum the evidence-showed him entitled to. This much of the instruction was proper. Burkholder v. Rudrow, 19 Mo. App. 60. But the instruction further declares that he should be allowed the sum he paid to the liveryman where the horses were kept by defendant constable. It is not necessary to say whether such claim could be allowed if pleaded, as we regard it as a special damage which should be specially pleaded. For this reason, therefore, the declaration was properly refused. This brings us to plaintiff’s complaint as to the amount 'of damages which the court assessed. We will [169] not consider this, as the attention of the trial court was not called to such complaint by the motion for new trial. The motion was based on the following reasons: “First. The verdict, finding and judgment are against the law. Second. The verdict, finding and judgment are against the-evidence. Third. There is no evidence to support the verdict, finding and judgment. Fourth. The verdict, finding and judgment are against the weight of the evidence. Fifth. The court erred .'in refusing the declaration of law asked by plaintiff.” These were not sufficiently specific or definite to bring to the court’s attention the particular matter complained of, viz., that the finding was for too small a sum. Ray v. Thompson, 26 Mo. App. 431; Bresnahan v. Brewing Co., 26 Mo. App. 386; Shockley v. Railroad (decided this term). The judgment will be affirmed. All concur.