Parsons v. John L. Clark & Co.

GOODE, J. The petition contains two counts, the first being on a promissory note given to plaintiff by the defendants in consideration of a stock of general merchandise they bought of him; the second set out the contract between the parties for the sale and purchase of said stock, which was alleged to constitute an equitable lien or mortgage on the merchandise for the security of the promissory note aforesaid and prayed that it be enforced and foreclosed and that a receiver of the goods be appointed pending the action. A writ of attachment was sued out by virtue of which the property was seized and sold by the sheriff. Defendants filed a plea in abatement and the trial of the issues joined on the averments of the affidavit for the writ of attachment, resulted in a verdict in their favor pursuant to a peremptory instruction given by the [31] court, and properly given; because there was no substantial evidence tending to sustain the grounds of attachment laid in the affidavit. >. The answer to the petition alleged the defendants were defrauded in the sale by the false representations of the plaintiff as to the value of the merchandise, his failure to inventory the goods at their actual cash value as he had agreed to do, and instead thereof, his inventorying them at prices from forty to fifty per cent more. By reason of the alleged fraud it was further averred the sum already paid plaintiff at the time the suit was begun on the note given for the purchase .money had fully paid him for the true worth of the goods and hence had satisfied the defendants’ indebtedness to him. Numerous exceptions were saved by the appellant to rulings on the admission of evidence and on the instructions which we find it impossible to review on account of the state of the record. It appears by the record dehors the bill of exceptions, that .the motion for new trial was overruled; but the bill itself is silent as to that matter and contains no exception to the overruling of said motion. It states that in four days after the verdict was returned, plaintiff filed his motion for a new trial, which is thereupon set out in full. At the conclusion of it, appears a recital that in four days after verdict plaintiff filed a motion in arrest of judgment which is likewise fully quoted. Then follows this statement: “And said motion coming on for hearing and being seen and understood was by the court overruled, to which ruling plaintiff at the time excepted and saves now his exceptions.” The exception thus saved must necessarily be held to refer to the ruling immediately preceding it, to-wit, the overruling of the motion in arrest ; which only brings up for review the record proper, in which we detect no error. White v. Caldwell, 17 Mo. App. 691; Hubbard v. Quisenberry, 32 Mo. App. 459. As there was no exception saved to the court’s action on the motion for a new trial, we can not consider the [32] exceptions that were saved' daring the trial. Ross v. Railway Co., 141 Mo. 390; Hoffman v. Trust Co., 151 Mo. 520. The judgment is, therefore, affirmed. Bland, P. J., and Beyburn, J., concur.