Little v. Nelson

Where a cause is submitted to the court, sitting as a jury, and no exceptions are taken to the evidence when it is offered, and the court is not called upon to decide any point of law, the judgment will not be reversed for error in law or fact.

APPEAL from St. Louis Court of Common Pleas. 1. It is respectfully submitted, that the St. Louis Court of Common Pleas committed error in overruling the appellant’s motion for a new trial, for the reasons embodied, in that motion, applying the law to the facts contained in the record. 2. Where a note is made by a tradesman, payable in clothing or specific articles, and the same does not express the time or place of payment, it is obligatory on the payee to make a demand for the same, at the place of business of the tradesman or payor, before he can convert his demand into money, and then only when he shows, on the trial, that a refusal attended such demand — the onus probandi being on the payee.— See Chapman on Contracts, p. 28, and following; Martin vs. Chauvin, 7 Mo. Rep., 277; Cornelius vs. McDonald; republication of Mo. Rep., vol. 2, p. 46, and authorities therein cited, and Welmouth vs. Patten, 2 Bibb, 280. 3. If the debtor be ready, at the time and place, to deliver the thing he has promised to give, and the creditor does not appear to receive the same; the contract or debt, is as completely discharged as by a tender of the thing due.— Chifman on Contracts, p. 137 and following, and authorities there cited. 4. There was no sufficient property vested in the creditor from his selecting the cloth and ordering the debtor to make the same up into clothing, to enable the creditor to maintain trover against the debtor, without a demand for the same, and this in person, or by- competent agent; a fortiori, he could not maintain this action.— Chitty’s Pleading, p. 5. There is no sufficient statement or cause of action to be found in the record, nor is there any foundation upon which the court could legally enter up judgment upon. The finding of the court (sitting as a jury) was in accordance with the evidence, and therefore the Court of Common Pleas did not err in' overruling the motion for a new trial, upon the grounds filed.— 4 Mo. Rep., 518. The order upon which this suit was brought was given for $50 in clothing, was accepted by the defendants below, who failed to furnish the clothing, and therefore they became liable for the money, and the Court of Common Pleas committed no error in refusing to arrest the judgment for the reasons assigned. — ■ 6 Mo. Rep., 250.