Weber Implement Co. v. Hill

APPEAL AND ERROR:~Motion For New Trial: Bill of Exceptions. The proper place for showing the filing of a motion for new trial and bill of exceptions, is in the record proper. Such showing in the bill of exceptions, alone, is insufficient.

Appeal from Boone Circuit Court. — Hon. A. H. Waller, Judge. (1) The court erred in not striking out defendant’s answer and counterclaim and in admitting evidence in support of the same. Both in the justice and circuit courts, defendant set up a counterclaim for $300, an amount in excess of the jurisdiction of the justice and it should have been stricken out. R. S. 1899, sec. 3936; Nenno v. Railroad, 105 Mo. App. 552; Brownfield v. Thompson, 96 Mo. App. 340. (2) The evidence shows that the defendant continuously used the engine during the entire fall season of 1906, and to a considerable extent during the threshing season of 1907. If the engine was of any value for any purpose, plaintiff was entitled to a verdict for such value. Heiman v. Mercantile Co., 106 Mo. App. 438, and cases cited; Brown v. Weldon, 27 Mo. App. 251, 99 Mo. 564; Armstrong v. Tobacco Co., 41 Mo. App. 254; Johnson v. Sproull, 50 Mo. App. 121;- West v. Freeman, 76 M'o. App. 96. (3) Defendant having received, retained and used the engine was certainly liable for its reasonable value, and having failed to return or offer to return the same, and the evidence clearly showing that the engine was of some value, defendant was not entitled to a verdict defeating plaintiff’s claim entirely. Thnmmel v. Dukes, 82 Mo. App. 53; Danforth v. Crookshanks, 68 Mo. App. 311. (4) Instructions should bé predicated both on the evidence and the pleadings, not on the pleadings alone, where there is no evidence in support of their allegations; and instructions numbered (1) and (2) are not based on any evidence in the case. Marr v. Bunker, 92 Mo. App. 661, and cases cited; Railroad v. Railroad, 118 Mo. 625, and cases cited; McAtee v. Yalandingham, 75 Mo. App. 53; Colliott v. American Mfg. Co., 71 Mo. App. 170, and cases cited; Stokes v. Distillery Co., 64 Mr. 420; Camp v. Railroad, 94 Mo. App. 282. (5) This court will not say that the verdict is for the right party and ought to be affirmed, when there has been a substantial misdirection of the jury upon a question of law bearing upon the issues of fact to be tried by the jury, but for which they might have reached a different conclusion. Cottrill v. Krum, 100 Mo. 406; Suttie v. Aloe, 39 Mo. App. 43; Clark v. Fairly, 30 Mo. App. 340. (1) Appellant’s printed abstract fails to show any record or abstract of the record, of the approving, filing, signing, sealing, allowing or date of filing of his bill of exceptions. So-there is no bill of exceptions before this court. I-Iarding v. Bedoll, 202 MG'. 629, and cases there cited. (2) The abstract fails to show any record of the filing or date of filing of the motion for new trial, hence exceptions raised by said motion cannot be considered. Start v. Zehnder, 204 Mo. 449, and cases cited. (3) Where there is no bill of exceptions filed by authority of court, only the record proper is open to review. Goodhart v. Kinney, 118 S. W. 679; Davis v. Foster, 118 S. W. 1191. (4) On the record the answer states facts sufficient to constitute a defense. That a machine for which a note is given is worthless is a good defense under a plea of want of consideration. Implement Co. v. Parmer, 128 Mo. App. 300; R. S. 1899, sec. 645; R. S. 1899, sec. 3947; Broderick v. Andrews, 115 S. W. 519. (5’) So is the defense of breach of warranty and worthlessness. Broderick v. Andrews, supra; Schoenberg v. Lolcer, 88 Mo. App. 387; Compton v. Parsons, 76 Mo. 455. So is the defense of fraud in the making of the sale and worthlessness of the article. Casey v. Smales, 4 Mo. 77; Barron v. Alexander, 27 Mo. 530; Cahn v. Reid, 18 M’o. App. 115; Sachleben v. Heintze, 117 Mo. 526.