Wright v. Fetters

JOHNSON, J. Action begun in a justice’s court on a promissory note. The defense was a plea of payment. That issue was tried before a jury in the circuit court on appeal and defendants had judgment, from which plaintiff prosecutes this appeal. Defendants executed and delivered to plaintiff the note in suit, which was for $100, and plaintiff delivered it to a Mr. Coulter as collateral security. Defendants introduced evidence tending to show that after the note matured Coulter and defendant W. H. Fetters met for the purpose of having a settlement. At that meeting, Fetters paid the note in full to Coulter who accepted in payment a note, which Fetters held against a Mr. Smith, in the sum of $69 and an account of $39, which Fetters held against the plaintiff Wright for labor performed for him at his request. These items taken at face overpaid the Wright note by a small amount, but Fetters waived reimbursement in the amount of the excess and Coulter, who stated that defendant’s note was lost, agreed to deliver it to Fetters should it be found. [591] He did riot perform this agreement, but returned the note to- Wright and this suit followed. No evidence was introduced by defendants to show that' Wright authorized Coulter to accept payment of the note in anything but money, but plaintiff did not request the giving of a peremptory instruction, and in the instructions asked by him, all of which were given, the jury was directed to allow the Smith note as a. credit and the only issue of fact submitted related to the existence of the account, which Fetters claimed to hold against plaintiff, and the amount actually due thereon. The authority of Coulter to accept such account was not treated as an issue either in the evidence or instructions. In the motion for a new trial filed by plaintiff, no complaint was made of error in the instructions and the only errors assigned were that the verdict was not supported by the evidence and was against the weight of the evidence. This motion was filed in due time, but was not overruled until the succeeding term of court, which began about three months after the adjournment of the term at which the judgment was rendered. After it was overruled, plaintiff filed a motion in arrest of judgment, in which he sought to raise the question of the constitutionality of the law under which the justice before whom the cause originated assumed to hold his office. The motion Avas overruled and the action of the court in overruling it is assigned and argued by plaintiff as an error committed against him. Section 803, Eevised Statutes 1899, provides that, “All motions for neAV trials and in arrest of judgment shall be made within four days after the trial if the term shall so long continue and, if not, then before the end of the term.” The motion in arrest clearly was filed out of time and therefore could serve no purpose. [Maloney, v. Railway, 122 Mo, 106; Bank v. Bennett, 138 Mo. 494; Pound v. Cassity, 91 Mo. App. 424.] The constitutional question thus attempted to be [592] injected is not in the case. [Bank v. Bennett, supra.] Nor can we consider the contention of plaintiff that the judgment should be reversed because of the absence of proof showing authority in Coulter from plaintiff to accept payment of the note otherwise than in money. Plaintiff’s instructions expressly concede that he accepted a part of the fruits of the settlement made by Coulter — the Smith note — and in effect contain an admission that Coulter had authority to accept other-classes of property than money in payment of the note. The court committed no error in permitting plaintiff to make such admission and he is in no position to complain of a verdict rendered against him on ground of his own choice. He cannot change front in the appellate court, but is bound by the theory on which the issues were submitted to the jury at his request. The judgment is affirmed. All concur.