Miller v. Duff , 34 Mo. 167 ( 1863 )

Bates, Judge,

delivered the opinion of the court.

The petition is sufficient to support the judgment. It states that the defendants were employed in building the railroad; that the plaintiff at a specified time delivered ties at the railroad, and the defendants then and there received them, and appropriated them to their own use. It is true that the petition does not state that the ties were delivered by the plaintiff to the defendants, but it does state a receipt of them by the defendants, at the same time and place with the delivery by the plaintiff, and the appropriation of them by the defendants to their own use, in the construction of the railroad.

The objection to the admission in evidence of the memorandum of Peabody is not so saved as to authorize this court to look into it. The ground of the objection is not stated at all.

The instructions given for the plaintiff, taken with those given for the defendants, fairly stated the case to the jury, and there was nothing in the third instruction asked by the defendants which was not contained in the instructions already given.

Judgment affirmed.

Judges Bay and Dryden concur.