OPINION ON MOTION FOB. REHEARING.
BROADDUS, J.The first ground for rehearing is, that as plaintiff asked no instructions in the trial court, it therefore can not be heard on a question of law, citing Wischmeyer v. Richardson, 153 Mo. 556, and other like cases. These authorities have no applica-' tion to the case at bar, for the reason that the respondent offered a declaration which was given by the court that under the pleadings and proof the plaintiff was not entitled to recover. The giving of this declaration of law sufficiently indicated the theory upon which the cause was tried, and the ruling here is in harmony with the ruling in the cases cited.
The second point relied on is, that the city charter requires that the tax be imposed on goods kept on hand “during the three months next before the first day of January of such year,” whereas the petition sues for taxes on goods alleged to have been held on the first day of January. This statement is true, but the evidence shows that the assessment was duly made-. This objection was raised on the trial at the offer of the plaintiff to introduce evidence that the assessment had been made, but it was overruled and no exception was taken to the ruling of the court; and the assessment and the action of the board of appeals was received in evidence. The assessment and the action of the board of appeals in raising the assessment were judicial acts, and as such were conclusive. State ex rel. v. Hoyt, 123 Mo. 348. At most there was only a variance by which defendant, if misled, had its remedy under the statute. Failing to avail itself of the provisions of.section 655, Revised Statutes 1899, the variance was waived.
*596Lastly, defendant asks ns to review onr decision on the question as to whether the defendant was a merchant within the meaning of the charter, and calls our attention to several authorities on the question, claiming, that we have misconstrued the law. We have examined the additional authorities mentioned and are satisfied with the opinion already rendered.
Motion for rehearing' overruled.
All concur.