Fuggle v. Hobbs , 42 Mo. 537 ( 1868 )

Wagner, Judge,

delivered the opinion of the court.

This was an action instituted in the Davies Circuit Court to recover an amount alleged to be due from the defendant to the plaintiff’s testator.

The foundation of the suit was an agreement entered into in writing between the testator Weldon, in his lifetime, and the defendant Hobbs, whereby it was stipulated that Weldon .assumed the payment of $787.50 to one Hamblin in part payment for a certain steam-mill formerly owned by Hamblin & Weldon, and then owned (at the date of the agreement) by Weldon & Hobbs, Hobbs agreeing that Weldon should have a lien on the mill till the amount was paid, specifying the length of time for which credit was to be given.

In the title to the petition the plaintiff is described as the administrator of Weldon, deceased, but in the body of the petition it is averred that he is the acting and lawful executor of the last will and testament of the deceased. There is no other allegation of his appointment, qualification, or representative capacity. The defendant filed an amended answer in which he did not controvert, deny, or in any way notice, the character in which plaintiff sued, but he set up other matters in defense to the action. This answer was, on motion of plaintiff’s counsel, stricken out, because it was indefinite, uncertain, and inconsistent. To which action of the court in striking out said answer, the defendant at the time excepted. Defendant then filed his second' amended answer, in which the only defense set up was a want of consideration to support the agreement sued on, and went to trial solely upon that issue.

The jury, after hearing the evidence, returned a verdict for the plaintiff, and judgment was rendered thereon. Defendant, after an unsuccessful effort to obtain a new trial and arrest the judgment, carried the case to the Fifth District Court, where the judgment was affirmed by a divided court, and it now comes here on appeal.

The counsel for the appellant has raised many points, but the real and substantial merits of the case may be limited to a small compass. It is objected that the petition does not state facts sufficient to warrant the plaintiff to sue, because hig representative character is not sufficiently set out and averred. This objection is raised here for the first time, and does not appear to have been taken at all in the court below. It is not included either in the motion for a new trial or in arrest of judgment. Under our system of pleading the defendant must be conclusively presumed to have waived it. If there was any defect, it was apparent on the face of the petition, and furnished ground for demurrer (Gen. Stat. 1865, p. 658, § 6) ; and when he failed to resort to a demurrer it must be construed into a waiver, (ift. § 10.)

The averment contained in the petition is amply good, in the absence of any objection, to sustain the cause, within the reasoning of the decision in the case of The State to the use of Tapley’s Adm’r v. Matson, 38 Mo. 489. The description of administrator in the title may be wholly disregarded.

It is further argued that the court erred in striking out the first amended answer. If this should be conceded, the appellant is in no condition to take advantage of it. We have examined the answer stricken out, and, while much of it is liable to the objections urged against it in the motion, we are of the opinion that there were some denials and matters stated in it which were well pleaded. But if the appellant intended to avail himself of the errors committed by the court in this respect, he should have let judgment go at the time and stood on his exceptions. By pleading over and going to trial on another issue, he voluntarily abandoned whatever grounds he might have had for a review of the action of the court.

The judgment appealed from is the judgment rendered upon the issue tendered by the last answer, and on which the case was tried; and should the case be reversed and sent back, it could only be for errors committed at the trial on the. issues as tendered and framed by the parties.

It is superfluous to go into an inquiry in regard to the consideration of the agreement, as all the evidence in that behalf was submitted by defendant (appellant here), and of course he cannot be heard to complain of it.

So far from there being no evidence, as contended, to sustain the verdict, the evidence is most cogent an'd conclusive, and the jury would not have been warranted in finding any other or different way. Entertaining these views, we have been unable to find any error in the action- of the court in giving or refusing instructions.

Judgment affirmed.

Judge Fagg concurs.