Kilgore v. Bonic , 9 Mo. 288 ( 1845 )

Scott, J.,

delivered the opinion of the court.

Kilgore executed a bond to Wm. McMurtry for $76, which was placed in the hands of John A. McClelland for collection. At the time of the delivery of the instrument to McClelland, the following words were endorsed on it to-wit: “I for value received do assign the within note to John A. McClelland.” This endorsement was not signed by McMurtry, the obligee of the bond, McClelland’s father was the stage proprietor on the route from St. Charles to Fayette, and was indebted to the defendant Kilgore in the sum of $100, who was a driver on the line. McClelland was agent for his father in superintending the route, and the bond was placed in his hands that he might receive the amount of it in the services of Kilgore as a driver. McClelland promised Mc-Murtry that so soon as he could collect a sum sufficient he would pay the bond. It does not appear that the father ever knew that the bond was in the hands of his son for collection, nor was it known that the father had ever charged Kilgore with the amount of it. McClelland, the father, afterwards failed, and the bond was returned to McMurtry, who assigned it to the plaintiff Bonic. No instructions were asked, and the cause was submitted to the court sitting as a jury, and a verdict was rendered for the plaintiff Bonic.

This is a case in which the only errors complained of, are those committed by the court sitting as a jury. No exceptions were taken to the introduction of any evidence, and no instructions were asked, and it is not until a verdict is rendered against him that he ascertains the judge does not apply his law correctly. His knowledge then came too late to avail him. He should have asked the court to declare the law of the case by instructions as soon as the evidence was closed. By omitting to do so, this court cannot see whether the court below erred in applying the law or in finding the issue. If the latter was the cause of complaint, the court would hardly interfere, seeing the superiority of the means enjoyed by the circuit court for determining the credibility of the witnesses.

Judge McBride concurring,

the judgment of the court below will be affirmed — a judgment in full accordance with that which would have-been rendered on the merits.