Guinotte v. Chouteau

34 Mo. 154

• Court: Supreme Court of Missouri
• Decided: July 15, 1863
• Status: Published

Opinion

Bates, Judge,

delivered the opinion of the court.

No exception was taken to the giving of instructions for the plaintiff, and none were asked by the defendants. The bill of exceptions shows that the defendants moved the court “ to set aside said judgment, and for a new trial of said cause, both of which motions were by the court overruled,” and defendants excepted. The motions were not incorporated in the bill of exceptions. It is impossible to know what was decided by the court below in overruling those motions.

The objection made to the memorandum, furnished by one of the defendants to the conveyancer who drew the deed, was, that it was made before the execution and delivery of the deed, and tended to vary and contradict it, and furnished no true measure of damages. This objection was properly overruled. It being competent for the plaintiff to show what was the true consideration, it would be difficult to derive testimony more pertinent than such a memorandum. The objection that it was made by one only of the defendants comes too late in this court.

The plaintiff having, in this court, remitted the excess of interest for which judgment was given, there remains no error in the record. Judgment affirmed.

The other judges concur.