Field v. Crecelius

Rombauer, J., delivered the opinion of the court. This is an action to recover damages for breaches of a written contract, by which the defendants agreed to manufacture certain barb wire machines for the plaintiffs. [303] The plaintiffs claimed several breaches of the contract, ■and damages resulting therefrom, aggregating $5,350. The defendants denied the making of the contract, and claimed that their signature thereto had been procured by the fraud of the plaintiffs, in representing it to be a duplicate of another contract, which had been •drawn up in the shape of a memorandum. They set out this memorandum in their answer as the true contract, and claimed performance of all its conditions, and a ’ breach thereof by the plaintiffs, for which they asked damages in the sum of $2,000 by way of counter-claim. The answer was denied by reply. The cause was tried by the court without the intervention of a jury, and resulted in a judgment for the plaintiffs for $54.21, and a judgment in their favor upon the counter-claim. The evidence is preserved in the record, only in part. The two written contracts on which the parties respectively rely, are set out in full, accompanied with an averment that the plaintiffs gave testimony to prove all the issues in their behalf. The bill of exceptions further recites, that on behalf of the defendants, voluminous oral testimony was introduced and heard, without stating what that testimony was, or what it tended to prove. Instructions were given on behalf of the plaintiff, which lay down correct propositions of law. None were asked or given on behalf of the defendant, or by the court of its own motion. As there is no error in the record proper, as the entire testimony is not preserved, nor even a statement as to what the defendants’ testimony tended to prove, as no exceptions are saved, except by the motion for a new trial, there is nothing brought here by this appeal for review. We are not authorized to treat the opinion filed by the trial court, preserved in the record, as a finding of facts or special verdict. Rev. Stat., sect. 3629; Weilandy v. Lemuel, 47 Mo. 322. All the judges concurring, the judgment is affirmed.