
    J. F. Girvin, Respondent, v. St. Louis Refrigerator & Wooden Gutter Company, Appellant.
    St. Louis Court of Appeals,
    April 21, 1896.
    Pleading: interest. A petition alleged the sale of timber at the contract price of $441, and the refusal of the defendant to accept the lumber on due tender thereof. It claimed damages in the sum of $458.50, hut contained no prayer for the allowance of interest. Held, that the petition did not warrant a judgment in favor of the plaintiff for more than $441.
    
      
      Appeal from the New Madrid Circuit Court. — Hon. Henry O. Riley, Judge.
    Modified and affirmed.
    
      Rudolph Bchulenburg and J. J. Russell for appellant.
    
      H. C. O'Bryan for respondent.
   Rombauer, P. J.

Plaintiff sues to recover the value of six hundred cottonwood piles, which he claims he sold to the defendant at the price of one and three quarter cents per lineal foot, and which the defendant failed to receive after tender made. The petition states that the timber thus tendered was of the contract price of $441. The petition claims damages for the sum of $458.50, but contains no prayer for the allowance of any interest. The defendant’s answer was a general denial. The cause was tried by the court without a jury, the trial resulting in a judgment for plaintiff for $458.50. The errors assigned by the appealing defendant are the admission of incompetent evidence, the refusal of the court to vacate the judgment as one opposed to the great weight of the evidence, and excess in the finding.

That the contract was made on the terms stated in plaintiff’s petition, and that the plaintiff complied with its requirements, is substantially conceded by all the evidence. The main defense interposed upon the trial was that, owing to the low stage of the water in the Mississippi river at and after the completion of plaintiff’s contract, the defendant could not receive and load the piles, as the stage of the water entering the chute leading to the place where the piling was put on the river bank was too low during the entire residue of the season to enable the piles to be loaded on barges, and that that was the only way of removing them. All the evidence concedes that, after the expiration of the season, the piles'became rotten and unfit for the use for which the defendant designed them.

The great bulk of the evidence was directed to this issue, which was outside of the pleadings. The plaintiff’s petition nowhere states, and even the evidence fails to show, that the acceptance of the piles was made dependent on the stage of water in the river. The letter of defendant’s agent to plaintiff states: “I will pay you the above price for piling delivered on bank of river, but you are to deliver them in reach of derrick boom, as Mr. Hampton done before.” All the evidence was to the effect that the piling was put in reach of the crane of the derrick boom, and that the water at that place was deep enough to float any barge.

If the defendant desired to raise the issue that the acceptance of the piling was dependent on the stage of the river furnishing facilities for its loading, it should have done so by setting that fact up in its answer and offering testimony in its support; neither of which was done. Hence, we can not put. the court in the wrong for ignoring an issue which was not properly made.

We have examined the objections to the evidence, and find that they are not well taken. After the plaintiff stated what he had done, and his statement disclosed a full performance of the contract on his part, it can not be considered prejudicial error to permit him to state that he had performed his contract. Nor could the admission in evidence of the letter of defendant’s agent furnish ground for reversing the judgment, when all the evidence concedes that the writer was the defendant’s agent.

The judgment, however, is clearly excessive. The allegations of the petition do not warrant a judgment in excess of $441. As the plaintiff has offered in this court to remit the excess of $17.50, the judgment will be modified so as to make it a judgment for $441, and as thus modified it will be affirmed; the respondent to pay the costs of this appeal.

So ordered.

All the judges concur.  