Ewing v. Reilly

Bates, Judge, delivered the opinion of the court. The covenant, which is the foundation of the suit, was for indemnity, and not a covenant for payment of the debts of the boat. The court below erred in giving judgment for the whole amount of the debt paid by Ewing & Co., who were not entitled to recover more than three-sixteenths of it until they [117] had shown that they could not compel the other part-owners to contribute their proportions of it because of their insolvency, or for some other good reason. The judgment is, therefore, reversed and cause remanded. The other judges concur. In this case a motion for a re-hearing was filed hy O. D. Drake for respondents, and overruled by the court. The points urged in the motion were as follows: 1. That the decision of the court disregarded j 33 of Art. xiv. of the Practice Art, which provides that “no exception shall be taken in an appeal, or writ of error, to any proceeding in the Circuit Court, except such as shall have been expressly decided by such court.” The point made in the decision of the Supreme Court was not made in the court below. 2. No exceptions were preserved in the record, and the Supreme Court has repeatedly held that in such case it will not reverse the judgment of the court below. (Shelton v. Ford, 7 Mo. 209; Steamboat Thames v. Erskine, 7 Mo. 213; Cornelius v. Grant, 8 Mo. 59; Long v. Story, 13 Mo. 4; Thompson v. Russell, 30 Mo. 216; Boyce v. Crickard, 31 Mo. 530.) 3. It has also been always held that exceptions to the giving or refusing of instructions must be taken at the time they are given or refused; and that to take such exceptions in a motion for a new trial is too late. (Bompart v. Rodgers, 8 Mo. 234; Randolph v. Alsey, 8 Mo. 656; Mattingly v. Moranville, 11 Mo. 604; Powers v. Allen, 14 Mo. 367; Bradley v. Creath, 27 Mo. 415; Dozier v. Jerman, 30 Mo. 216; Devlin v. Clark, 31 Mo. 22.) The record shows no exceptions taken to the giving or refusing of instructions at the close of the evidence, nor does it appear whether the instructions were given or refused, except by the writing of the word “ refused ” on the margin opposite each instruction. 4. The only exception in the progress of the trial was to the refusal of the court, at the close of the plaintiffs’ case, to declare the law to he that upon the case as made the plaintiffs could not recover against the defendants, Lockwood and others, who were the securities of Reilly in the bond. This being, in effect, merely a demurrer to the evidence, the overruling of it is no ground for a new trial, when the defendants afterward introduced evidence. (Colegrove v. N. Y. & Harlem R. R. Co., 6 Duer, 382, 411, 412.) 5. But should the court decide against this view, the overruling of that instruction was not error, because the instruction went the length of declaring that there could be no recovery against those parties, when this court holds that three-sixteenths of the amount paid by Wm. L. Ewing & Co. might be recovered against them in this action. 6. There being, therefore, no exceptions properly taken, the Supreme Court has decided the case upon the evidence alone, in the face of numerous [118] decisions against such action on its part; the latest of which was in Thompson v. Russell, 30 Mo. 498. 7. The point upon which the Supreme Court decides the case was not set up in the answer; and it has been repeatedly held that the defendant cannot introduce evidence in support of a defence which his answer does not set up. (Kennedy v. Daniels, 20 Mo. 104; Winston v. Taylor, 28 Mo. 82; Cowden v. Cairns, 28 Mo. 471.) 8. The bond sued on was for indemnity against liability, not against damage; and to show the former, was enough to entitle the plaintiffs to recover. (Sedgwick on Damages, 313; Rockefeller v. Donnelly, 8 Cowan, 623; Chace v. Hinman, 8 Wend. 452; Gilbert v. Wiman, 1 N. Y. 550; McGee v. Roen, 4 Abbott Pract. R. 8; Gennings v. Norton, 35 Me. 308; Fish v. Dana, 10 Mass. 46; Ramsay v. Gervais, 2 Bay, 145; Bellune v. Wallace, 2 Rich. 80; Pope v. Hays, 19 Texas, 375; Stroh v. Kimmell, 8 Watts, 157; Carman v. Noble, 9 Penn. State, 366; Leber v. Kauffelt, 5 Watts & Sergt. 440.)