¶1This is an action of replevin, the petition and affidavit charging an unlawful taking and detaining of the goods • replevined. The affidavit ■contained a statement under section 3849, Revised Statutes, “ that said property was wrongfully taken, and that plaintiff’s right of action accrued within one year next before the filing of this suit.” The goods were taken from defendant’s possession. The answer was a general denial, with a special defence in addition.
¶2The result below was in favor of defendant, and plaintiffs appeal.
¶3It appears that the defendant executed to plaintiffs a note due “one day after date,” regularly negotiable inform, except the words, “with exchange on St. Louis,” it being claimed that these words destroyed the negotiability of the paper. This note was secured by a chattel mortgage on a stock of goods in defendant’s possession till default in the payment of the note, etc. The special defence interposed was, in substance, that ■defendant-being indebted to plaintiffs, and unable to immediately meet the demand, he executed the note *468and mortgage, with the express verbal agreement that he should have sixty days in which to pay the note that he was to continue in possession of the goods for the purpose of selling and remitting the proceeds weekly to plaintiffs till their debt should be liquidated; that the plaintiffs agent, the second or third day after obtaining the execution of the note and mortgage (fraudulently intending to do so from the beginning), instituted this action without warning, or further conference with defendant. On the trial defendant, among other things, claimed that the note was negotiable, and entitled to-days of grace, and, therefore, the action was instituted before default was made, as stipulated in the mortgage. Plaintiffs contended the words, “with exchange on St. Louis,” destroyed the negotiability of the note, and it was, therefore, not entitled to days of grace.
¶4The motion for a new trial was overruled, but no exception was taken thereto by plaintiffs. This eliminates from the case all questions except those presented by the record proper. If there be patent errors in the record, which would be fatal to the judgment, we must reverse the judgment, notwithstanding there was no ex-, ception.
¶5The answer, while containing a general denial, does admit that defendant gave a mortgage on the goods in controversy to secure to plaintiffs a note for the sum of $536.14, but alleged the note was not due at the institution of the suit.
¶6The judgment rendered against plaintiffs was for the full value of the goods, as stated in the affidavit, viz: one thousand dollars and ninety-five dollars damages. As the mortgage and note were due at the time of the trial, the judgment should have been the amount of the debt less than it was. Our statute of replevin is of sufficiently flexible nature to adjust the rights of the parties in actions of this nature. Dillworth v. McKelvey, 30 Mo. 149; Boutell v. Warne, 62 Mo. 350; Bougherty Cooper, 77 Mo. 528
¶7*469We will, therefore, reverse this judgment and remand the cause, with directions to the circuit court to enter judgment for the defendant for said sum of ten hundred and ninety-five dollars, less* the amount of plaintiff’s note and interest at the rendition of the judgment. The costs of this appeal are hereby adjudged .against the defendant. The costs of the trial will follow the judgment.