Dunlap v. Kelly

JOHNSON, J. Action on a promissory note. Verdict and judgment were for plaintiff in the sum of $116.70. The cause has been here twice before on appeals of defendant (105 Mo. App. 1; 115 Mo. App. 610), and each time was reversed and remanded. The facts of the case as well as the grounds on which it was remanded appear in the former opinions and need not be repeated here. At the last trial, defendant objected to the introduction of evidence on the ground that the petition failed to state a cause of action and, at the close of the evidence, offered a demurrer to [525] tbe evidence based on tbe same ground. We tbink tbe petition does sufficiently state a cause of action but we shall not consider tbe objection for tbe reason that defendant did not preserve it by filing a motion in arrest of judgment. Tbe rule is well settled tbat an appellate court “will not consider anything as a ground for reviewing a proceeding or judgment of tbe circuit court which has not been finally passed upon by tbat court, either in a motion for a new trial, if tbe alleged error has relation to proceedings during tbe trial, or in arrest of judgment if relating to tbe pleadings.” [Warner v. Morin, 13 Mo. 455; Woods v. State to use, 10 Mo. 698; Bowling v. McFarland, 38 Mo. 465.] Objection is made to tbe following instruction given at tbe instance of plaintiff: “Tbe court instructs tbe jury tbat if you find for tbe plaintiff you will calculate tbe interest on tbe principal of tbe note sued on from tbe maturity of said note, to-wit: six months after tbe date thereof, up to tbe first payment made on said note at the rate of eight per cent per annum; then add tbe interest so found to tbe principal and deduct the first payment therefrom, then calculate tbe interest on tbe remainder from tbe date of said first payment to tbe date of tbe second payment, add tbe interest to tbe remainder and deduct tbe second payment; then calculate the interest on tbe remainder from tbe date of the second payment to the date of tbe third payment; add tbe interest to tbe remainder, then deduct tbe third payment therefrom, then calculate tbe interest on tbe remainder from tbe date of said third payment to this date, then add tbe interest to tbe remainder and for tbe sum so found, you should return your verdict.” Tbe true rule to be followed in tbe computation of interest on a promissory note where partial payments have been made thus is stated by tbe Supreme Court in Riney v. Hill, 14 Mo. 500: “Interest is first to be calculated on a demand up to tbe first partial payment, then add tbe [526] interest to tbe principal and deduct the payment therefrom, then cast interest on the remainder to the second payment, add the interest to the remainder, and deduct therefrom the second payment, and so on until the last partial payment, unless, in any case, the interest up to any payment shall exceed the payment, in which case, such payment is to he deducted -from the interest, and the excess of the interest is to he carried forward, without casting interest thereon, to the next payment that will discharge the excess It will be noticed that part of the rule we have italicized was omitted from the instruction under consideration and as it appears that one of the partial payments endorsed on the note was less than the interest which had accrued after the preceding partial payment was made, the result of the computation of interest made by the jury in obedience to the rule given in the instruction exceeded by fifty-two. cents the amount actually due under the proper rule. The principles recently discussed and applied by us in the case of Kroge v. Modern Brotherhood, 105 S. W. 685, 126 Mo. App. 693, would require us to hold the error to be prejudicial but for the insignificance of the amount of the excess. We deem this to be a case for the application of the maxim “de minimis non curat lex” and, since plaintiff has offered to enter a remittitur for the fifty-two cents, are of opinion that the ends of justice will be served best by affirming the judgment on condition that the remit-titur be entered within ten days from the filing of this opinion. It is so ordered. All concur.