Plaintiff sued to recover damages for the alleged breach by defendant of a contract for the sale of a farm owned by plaintiff in Linn county, Kansas. The first trial of tbe case resulted in a judgment for plaintiff which we reversed on 'the appeal of defendant and remanded the cause for a new trial. [163 Mo. App. 701.] Plaintiff amended bis petition to conform to tbe views expressed in our opinion and defendant answered setting up a new defense. The second trial ended in plaintiff taking a nonsuit with leave. In due time he moved the court to set the nonsuit aside but the court overruled tbe motion and plaintiff appealed.
We are stopped at the threshold of the case by the disclosure in the record that the nonsuit was voluntary and consequently the judgment rendered upon it is final and not open to review in the appellate court. At the close of the evidence introduced by plaintiff counsel for defendant asked the court to give the jury a peremptory instruction. the record recites that “upon the intimation of the court that a demurrer to the testimony should be sustained, plaintiff takes a nonsuit witb leave to move to set the same aside. ’ ’
The rule is well settled in this State in a long line of decisions that “where at the close of plaintiff’s evidence the defendant asks an instruction in the nature of a demurrer to the evidence and the court announces an intention to give the instruction, a nonsuit taken before the ruling is made and exceptions saved thereto is voluntary.” [Rubber Co. v. Wernicke, 166 Mo. App. 128; Bank v. Gray, 146 Mo. 568; McClure v. Campbell, 148 Mo. 96; Lewis v. Mining Co., 199 Mo. 463; Carter v. O’Neill, 102 Mo. App. 391; Graham v. Parsons, 88 Mo. App. 385; Lucas v. Huff, 92 Mo. App. 369; Sad*126dlery Co. v. Bullock, 86 Mo. App. 89; Adamson v. Railroad, 126 Mo. App. 127; Lewis v. Mining Co., 199 Mo. 463.] '
Plaintiff was not put out of action by an adverse ruling since none was made against Mm. There being no ruling there was, of course, no exception, and without an exception duly taken and preserved in the record there is nothing before us for review.
The judgment is affirmed.
All concur.