On petition for a rehearing.
Howk, C. J.An earnest and elaborate petition for a rehearing of this cause has been filed in this court by the appellant’s learned counsel, and is now before us. The only point made in this petition is, that, in the original opinion in this case, this court omitted to or did not fully consider the question “ in regard to the amount of the judgment rendered in favor of the appellee in the court below.” That question ivas not and is not presented to this court by any error assigned by the appellant on the record of this cause. Therefore, we did not consider the question in the original opinion, and, therefore, it can not now be considered.
“ Error in the assessment of the amount of recovery, whether too. large or too small, where the action is upon a contract,” as in this case, is the fifth statutory cause for a new trial, as stated in section 352 of the practice act. 2 R. S. 1876, p. 180. This cause for a new trial, or the kindred of “ excessive damages,” the fourth statutory cause, must be assigned in the motion for a new trial, as cause *277therefor, addressed to the trial court, in order that a question in regard to the amount of recovery or judgment may be properly saved in the record, and presented to this court.
In the case at bar, as stated in the original opinion', the only causes for a new trial, assigned by the appellant in his motion therefor, were, that the finding of the court was not sustained by sufficient evidence, and that it was contrary to law. This court has often decided, and we adhere to those decisions, that these causes for a new trial will present no question in relation to the amount of the recovery or excessive damages, for the consideration and decision either of the circuit court or of this court. Spurrier v. Briggs, 17 Ind. 529; Floyd v. Maddux, ante, p. 124.
The petition for a rehearing of this cause is overruled.