I.
Hall, J.The defendant complains of the action of the circuit court, in refusing to permit him to testify to the statement made to him by his vendor, Phillips, as to when the plaintiff’s lease of the land would expire, on the ground that such evidence was competent to show that he had probable'cause to believe that he was, at the time of the trespass, entitled to the possession of the land, and that plaintiff’s lease had expired.
The defendant’s objection is based on section■ 3924, Revised Statutes, which provides that, in an action of this kind, “if it shall appear- that the defendant had probable cause to believe that the land on which the trespass is alleged to have been committed, or that the thing so taken, carried away, injured, or destroyed, was his own, the plaintiff in the action, or prosecution, shall receive single damages, only, with costs.”
The jury do not pass upon the question of probable cause; that question is for the' court. The facts to which the defendant was not permitted to testify were testified to by Phillips, and his testimony was not contra-*436dieted. The court must have considered those facts as admitted, hut it held that, notwithstanding the statement made by Phillips to the defendant, inasmuch as the defendant admitted that he had received notice, in writing, of the plaintiff’s claim to the possession of the land, contrary to said statement, till the following March, he could not, in the meaning of the statute, be held to have had probable cause to believe that he had the right to the jiossession of the land at the time of the trespass.
Having had notice of the plaintiff’s claim, the court held that the defendant acted at his peril when he entered the land. In so holding, the court held correctly. Thus, no harm was done the defendant by the court denying his offer to give such testimony.
II.
The defendant argues that, because the verdict exceeded in amount the amount authorized by any evidence,, the verdict was unsupported by the evidence, and should have been set aside and a new trial granted, and that the fault in the verdict was not cured by the remittitur of so1 much of the judgment sum twice'in amount (the judgment having been doubled by the court) of that which the jury might have found in their verdict, under the evidence.
It is true that, in the case cited by defendant (Koeltz v. Bleckman, 46 Mo. 320), where the verdict of the jury exceeded the amount claimed by the plaintiff in his petition, and where the plaintiff, by leave of the circuit court, entered a remittitur, reducing the j ndgment to a sum within the amount so claimed in the petition, the supreme court held that the verdict was bad, and was not cured by the remittitur. That case, however, ■was decided on its peculiar facts, as a reading of the opinion will disclose, and was based upon the glaring misconduct of the jury, in paying no attention to the law or the evidence, and the unmistakable fact “that *437tlie defendant’s side of the case was never considered by the jury,” on account of which the court said: “ and to allow the judgment to stand, by virtue of the remit-titur, is really permitting the plaintiff to make his own verdict.” In this case, there is nothing of the kind.
This case is, very clearly, nothing more than the common case of an excessive verdict; of the jury assessing the damages at a sum hot warranted or justified by the evidence. In such case it was proper for the circuit court to permit the plaintiff to enter a remittitur. This is abundantly shown by the authorities cited in plaintiff’s brief.
We are not called upon to determine whether the verdict, notwithstanding the remittitur, is still excessive. All exceptions not brought to the attention of the trial court, in a motion for a new trial, are deemed waived. McCord v. Railroad, 21 Mo. App. 96. That the damages were excessive was not assigned as a ground of the motion for a new trial. “The ground of excessive damages, as a cause for a new trial, is not embraced in the assignment that the verdict is not sustained by sufficient evidence,” or “is contrary to law.” Spurner v. Briggs 17 Ind. 529.
Judgment affirmed.
All concur.