ON MOTION EOR REHEARING.
ELLISON, J.We are asked to grant a rehearing in this cause. The reasons assigned and brief and argument in support are mainly a repetition of the original brief and oral argument. Evidently defendants regard the action of the jury in finding the verdict against them as unjust. But *164with this we have no concern further than to see that it has legal testimony tending to support it, and that the instructions have been properly passed on by the court.
The trial court was amply supported in admitting the testimony of witnesses objected to, and which we discussed in the foregoing opinion, by Greenwell v. Crow, 73 Mo. 638; Elsner v. Sup. Lodge, 98 Mo. 645; Fitzgerald v. Hayward, 50 Mo. 517; Eyerman v. Sheehan, 52 Mo. 221; Strauss v. Railway, 86 Mo. 421; Franz v. Ireland, 66 Barb. 388. The latter case involved the estimate of the contents of a tree by a witness who observed the size and appearance of the stump.
It is complained that we overlooked defendants’ objections to the refusal of their instruction number 4. This was for the reason that defendants themselves abandoned it in their specific statement of “the points presented for review” and in their argument.
It is also complained that we overlooked objection made to testimony of what Stoney said to plaintiff. The objection being that it was hearsay since Stoney’s agency had ceased. The record shows it had not ceased.
It is pointed out at length, that the testimony of different witnesses was inconsistent. That they varied widely in their estimate or calculation of the number of ties taken. Such matter was proper argument for the jury and proper matter for the jury to consider in making up the verdict. It can find no place here.
It is now again urged, as it was in the brief at the hearing, that the verdict is in excess of the amount claimed in the petition. That although the amount claimed in the reply with interest claimed will cover the verdict, yet the claim for that sum can not be made in the reply. It seems that the reply was occasioned by new matter alleged in the answer including a counterclaim set up by defendants. Plaintiff seeks to justify his recovery of the amount claimed *165in the reply by the cases of Mortland v. Holton, 44 Mo. 64, and Com. Co. v. Block, 130 Mo. 680. But, without going into that question, we deem it sufficient to dispose of the matter to repeat that the case was tried by both parties, without objection from either, on the issues presented by the reply. There was no suggestion of the nature now made until after the trial. It was then too late to affect the course of the action taken at the trial. It has been repeatedly held that, if no reply should be filed at all, and yet the trial be had without objection, an objection will not be afterwards entertained.
Defendants with a view of avoiding the well recognized rule in this state announced in the case of Hill v. Drug Co., 140 Mo. 433, which limits parties on appeal to the line of .action adopted at the trial, claim they did object, by excepting to plaintiff’s instruction where the court directed the allowance of interest (only claimed in the reply) to plaintiff if they found there was a balance due him over the counterclaim. This was not an objection to a trial on the reply. It was not so understood by defendants’ counsel, for it finds first mention on the motion for rehearing. No objection to this instruction for plaintiff was made in “the,points presented for review,” nor is it mentioned or objected to in the brief and argument. It is certainly out of place to claim for the first time on a motion for rehearing that the mere exception to such instruction was an outline of defendants’ policy at the trial on the question of pleading. The fact is that though a formal exception was made to giving plaintiff’s instruction, yet it was tacitly abandoned here as no point was made on it. We have carefully gone over defendants’ grounds of objection to the action of the court and jury and can not find that any substantial error has been committed materially affecting the merits of the controversy. We therefore overrule the motion.
All concur.