Richardson v. George

34 Mo. 104

Opinion

Bates, Judge,

delivered the opinion of the court.

This suit was brought against George as contractor for building some houses for the other defendants, Priest and Watson, to enforce a mechanic’s lien in favor of the plaintiff, who was a sub-contractor. The plaintiff claimed for the worth and value of the work done and materials furnished by him. George answered and alleged that he had a special contract with the plaintiff, by which the plaintiff was to do the work for one thousand nine hundred and seventy-five dollars. The other defendants did not answer, and default was taken against them. At the trial the plaintiff gave evidence to establish his account, and the defendant George gave evidence that there was a special contract, but did not show what it was except by the plaintiff himself, who testified that for a portion of the account he was to receive two thousand four hundred dollars, and that there were other charges which were extras. The defendant George asked the court to instruct the jury “ that if they believe from the evidence that a portion of the work sued for was performed by plaintiff for defendant under a contract between them for a specific sum, then plaintiff can for such work only recover nominal damages, unless the amount for which the contract was made has been shown by the evidence, and the burthen of such proof devolves upon plaintiff.” The court properly refused this instruction, because the defendant George having set up the special contract it was his business to prove it.

Note by Reporter. — There is a distinction, which is frequently overlooked, between matter of exception and error. Properly, exception is taken to the action of the court in that which is not matter of record, as to the admission or rejection of evidence, the granting or refusing some motion, the declaration of the law to the jury, &e., which can be made matter of record only by bill of exceptions. The record of a case is, at common law, the writ, declaration, and subsequent pleadings, the verdict and judgment; and upon writ of error, the court would examine the record and reverse the judgment if there were error apparent. (See 2 Phil. Ev., Cow. & H., notes, ed. 1859, 996-1000, and notes 606, 607 & 614; Jac. L. D., Exceptions to Evidence, Error.)

The defendants, who were the owners of the building, have made no question about the special contract. A verdict was given for the plaintiff, and a general judgment was given against all the defendants, with special judgment against the property. This judgment was erroneous in being general, but that question is not properly before us. No exception to it was taken in the court below, and, although motion in arrest was filed, that error was not pointed out or referred to. Even in this court the assignment of errors does not show that as an error.

Judgment affirmed.

Judges Bay and Dryden concur. Exception must be taken at the trial, or it will be waived. The provision of our statute (E. C. 1865, p. 1264, § 27, &c.) is similar to the old English statute of XIII. Ed. I., Ch. 31, but requires all the exceptions taken to be embraced in the same bill, in this respect differing from the common law practice. The distinction between matter of error and exception seems to be preserved in the statute. (E. C. 1855, p. 1300, § 33, and p. 1301, § 35.) Sec. 33 declares that “ no exception shall be taken in an appeal, or writ of error, to any proceeding in the Circuit Court, except such as shall have been expressly decided by such court;” while sec. 35 requires the Supreme Court to examine the record and award a new trial to reverse or affirm the judgment, or to give the proper judgment, as may seem agreeable to law. As a general rule, the Court of Errors will notice no errors except they be specially assigned; but it may, and often does, notice error apparent upon the record proper, although it be not assigned specially. (Jac. L. D. vers. Error ; McWaters et al. v. State, 10 Mo. 167; McGee v. State, 8 Mo. 495.) And it will sometimes reverse although the error was not excepted to in the court below, (West Ass. v. Miles, 9 Mo. 167), in which case the judgment was reversed for irregularity. (See Harbor v. Pacific E.E., 32 Mo. 423.) After the close of the term, the nisi prius court has no authority to correct any errors committed, however apparent; this can only be done by the Court of Errors upon writ of error or appeal.