Al v. Koetter

• Decision Date: 22 December 1885
• Citation: 20 Mo.App. 79
• Parties: FREDERICK HOLLENDER ET. AL., Respondents, v. GUSTAVE KOETTER, Appellant.
• Court: Missouri Court of Appeals

20 Mo.App. 79

FREDERICK HOLLENDER ET. AL., Respondents,

v.GUSTAVE KOETTER, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 22, 1885.

APPEAL from the St. Louis Circuit Court. AMOS M. THAYER, Judge.

Reversed nisi.

MUENCH & CLINE, for the appellant: An instruction which assumes the existence of evidence to establish a certain fact, when no such evidence was introduced at the trial, is erroneous. Gunn v. Railroad, 60 Mo. 405; Singer v. Hudson, 4 Mo. App. 145.

LOUIS GOTTSCHALK, for the respondents.

ROMBAUER, J., delivered the opinion of the court.

The plaintiffs sued the defendant for a balance of $493.73, on account, for goods sold and delivered. Upon the trial the defendant admitted the correctness of all the items except six, aggregating $333.80; the jury found a verdict for the plaintiff for $309.98, and interest, being $150 more than was admitted by the defendant. The defendant appeals.

The errors assigned, among others, are that the court admitted illegal testimony against the defendant's objection, and gave an erroneous instruction on behalf of the plaintiffs.

The error complained of in the admission of testimony consists of allowing one of the plaintiff's witnesses to testify, in general terms, as to the correctness of the debit side of the account. The witness was general manager for the plaintiff, and, as appears from his subsequent testimony, had personal knowledge of most of the contested items. The defendant, moreover, admitted the sale and delivery of the goods, and prices charged therefor, his only contention being that he was entitled to additional credits. It must be evident, therefore, that he could not have been prejudiced by the general statement of the witness, conceding that his objection to the testimony was well founded and not too broad.

Among the items of the account is one for twenty-five cases of mineral water, $4.75 per case, amounting to $118.75. The defendant is credited with $18.75 on this item, leaving a balance of one hundred dollars contested. In regard to this item the plaintiff's testimony tended to show the following facts: that the sale was made to the defendant in New York, at prices about one-half the market rate, with the understanding that the water was a job lot, and damaged. That the defendant tested several of the bottles at the plaintiffs' salesrooms, prior to giving his order, and that the water was shipped the next day. The plaintiffs had bought this water of one Levy, at about three dollars per case. That the defendant never complained of the quality until more than a year after shipment. But the plaintiffs gave no testimony, nor was there any testimony in the case tending to show that the water shipped, or any part thereof, was of the same quality...