Mound City Paint & Color Co. v. Shooting the Chutes Co.

Bland, P. J. — Plaintiff brought its suit against the defendants in error on an account for $285.71, for paints and oils sold and delivered to Shooting the Chutes Company on the credit of the other defendant, Louis Mette. The suit was begun before a justice of the peace. About the time the suit was instituted the defendant Shooting the Chutes Company made a general assignment for the benefit of its creditors, and plaintiff dismissed as to it. A trial in the justice’s court resulted in a judgment for the defendant, from which it appealed to the circuit court, where, upon a trial ele novo before the judge of the court without a jury, judgment was again rendered for the defendant. A motion for new trial was filed in due time, which was overruled,- and plaintiff filed its bill of exceptions, and afterward sued out a writ of error by which the record was brought to this court. No exceptions to the admission or rejection of testimony were saved at [663] the trial, and no declarations of law were asked or given. The court, however, rendered the following written opinion in passing on the case: “This case, in my judgment, falls within the provisions of the statute of frauds and is almost identical with Rottmann v. Pohlmann, 28 Mo. App. 399. Judgment' affirmed.” The plaintiff in error refers to this written opinion of the court in its motion for a new trial as an instruction. This is not an instruction; to call it one is a misnomer. It expresses the opinion of the court as to the law of the case, but it is not an instruction, and is no part of the record, Lawver v. McLean, 10 Mo. App. 591, and can not be made a part of the record, even though incorporated in the bill of exceptions. Mead v. Spalding, 94 Mo. 43. There is nothing in the record for this court to review, and the judgment is affirmed. All concur. Judge Biggs concurs in the result.