21 S.W. 94 (Mo. 1893), Seligman v. Rogers

Citation:21 S.W. 94, 113 Mo. 642
Opinion Judge:Gantt, P. J.
Party Name:Seligman et al., Appellants, v. Rogers, Executrix
Attorney:E. W. Banister and John O'Day & Brother for appellants. Boyle, Adams & McKeighan for respondents.
Case Date:January 31, 1893
Court:Supreme Court of Missouri
 
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Page 94

21 S.W. 94 (Mo. 1893)

113 Mo. 642

Seligman et al., Appellants,

v.

Rogers, Executrix

Supreme Court of Missouri, Second Division

January 31, 1893

Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.

Affirmed.

E. W. Banister and John O'Day & Brother for appellants.

(1) Where the preponderance of the evidence is so decidedly in favor of the defeated party as to lead naturally to the conclusion that injustice has been done him by the judgment, a new trial should be granted. Ackley v. Staehlin, 56 Mo. 558; Hearn v. Keith, 63 Mo. 84; Wilson v. Albert, 89 Mo. 544; Ellis v. Bray, 79 Mo. 227; Lionberger v. Pohlman, 16 Mo.App. 397; Hacker v. Brown, 81 Mo. 68; Robbins v. Phillips, 68 Mo. 160; Schoollings v. Railroad, 75 Mo. 518; Moore v. Hutchison, 69 Mo. 429; Skink v. Sautter, 73 Mo. 46. (2) The court erred in its instruction on the theory of the abandonment of the contract; instructions must be based on evidence to support them. Haskins v. Railroad, 58 Mo. 302; Lester v. Railroad, 60 Mo. 265; State v. Miller, 67 Mo. 604; Ewing v. Gass, 41 Mo. 192; Cottrell v. Spies, 23 Mo.App. 32. (3) Instructions as to credibility of witnesses should not be given in every instance, but only when justified by the conduct of witnesses at the trial or on account of the impeachment of some witness. White v. Maxey, 64 Mo. 552; State v. Hickam, 95 Mo. 322; Batterson v. Vogel, 10 Mo.App. 235; Bank v. Murdock, 62 Mo. 70; Henry v. Railroad, 19 S.W. 239; State v. Buchler, 103 Mo. 208. (4) The jury cannot wilfully disregard the testimony of unimpeached and uncontradicted witnesses. Robison v. Doyle, 26 Ill. 161; Insurance Co. v. Gray, 80 Ill. 30. (5) A judgment will be reversed where illegal testimony has been admitted. Weil v. Posten, 77 Mo. 288; Richie v. Kinney, 46 Mo. 298; Farrell v. Brennan, 32 Mo. 328. (6) An account stated must be objected to by the party to whom it is sent within a reasonable time after its receipt, or he will be bound by the statements therein contained, and his silence will be taken as a confession of the correctness of the same. Powell v. Railroad, 65 Mo. 658; Brown v. Kimmell, 67 Mo. 430; Shepard v. Bank, 15 Mo. 143. (7) Books of account are competent evidence when the foundation for their admission is laid by showing that the books contain the original entries in relation to the subject-matter, which entries were made at the time the transaction occurred, so as to constitute a part of the res gestae of the transaction. Plaintiffs' books and also those of the Atlantic & Pacific stock syndicate were admissible in evidence and their exclusion was error. Nelson v. Nelson, 90 Mo. 460; Shepard v. Bank, 15 Mo. 144; Penn v. Watson, 20 Mo. 16; Smith v. Beattie, 57 Mo. 281. (8) There are in this record not less than twenty-two exclusions of evidence offered by plaintiffs, and almost all, if not all, properly admissible under the decision of this court in Anchor Milling Co. v. Walsh, 18 S.W. 904. (9) Nor can the excluded entries in plaintiffs' books be regarded merely as cumulative evidence. The latter is additional evidence of the same kind to the same point. Gliden v. Dunlap, 28 Me. 379; Parker v. Hardy, 24 Pick. 246; 10 Wend. 294. (10) The admission of the letter of John S. Rogers was undoubted error. It was introduced by the defendants pending the cross-examination of the witness Kavanaugh and admitted over plaintiffs' objection and exception. It in effect permitted Capt. Rogers himself to testify through the statements not under oath of John S. Rogers, while plaintiffs could say nothing. It was double hearsay, and considering all things, the most powerful piece of evidence on defendants' side in the case. If the statements in the letter were competent evidence, John S. Rogers himself should have been interrogated as to the matters referred to in it when he was on the witness stand. But this was not done. This case presents this singular anomaly, that the competent documentary evidence of plaintiffs, viz., their books were rigorously excluded, while the incompetent document written by John S. Rogers was carefully admitted.

Boyle, Adams & McKeighan for respondents.

(1) The statement of appellant's claim filed in probate court, on which alone appellant can recover, was too uncertain, indefinite, obscure and is wholly insufficient to constitute the cause of action sought to be recovered on. Watkins v. Donnelly, 88 Mo. 322. (2) The verdict and judgment were for the right party. No other verdict or judgment could have been rendered without great injustice to the respondent, and therefore the verdict and judgment of the court below should be affirmed without regard to whether or not errors were or were not committed by the lower court in the admission of evidence or the giving of instructions. Methudy v. Ross; 81 Mo. 481; Noble v. Blount, 77 Mo. 235. (3) The instructions of appellant which were refused were either substantially given by the court's own instructions, or if not were not the law or not founded on any evidence. And, besides, the appellant excepted to the refusal to give all of them, the language of the exception is, "to which action of the court in refusing to give each and all of said instructions so asked by plaintiffs, plaintiffs then and there excepted." (4) The instructions given for respondent contained the law, and were justified and warranted by the evidence. The instructions on abandonment follow the well established law of this court. Chouteau v. Iron Works, 83 Mo. 70; 94 Mo. 388. The instructions of the court with regard to the credibility of witnesses were justified by the inconsistencies, contradictions, discrepancies, bias and situation of the witness Kavanaugh, and other circumstances revealed by his evidence. (5) The court committed no error in the admission of the bank's statement as to the available means of the deceased. Such evidence was relevant, and especially so in view of the cross-examination by counsel for appellant of the respondent. Neither did the court err with respect to the admission of the value or fluctuations of the market in the Atlantic & Pacific stock. Such evidence was relevant and pertinent to the issues, both in a direct and collateral way, and specially made admissible by evidence of the value of stock introduced by appellants. If evidence is admissible for any purpose, it cannot be excluded upon any mere general objection as to its relevancy or competency. Anderson v. Pike, 41 Mo.App. 332; Keim v. Railroad, 90 Mo. 314. Appellate courts will not review the action of trial courts in admitting secondary evidence where the specific objection is not made at the time. White v. Stephens, 13 Mo. 240; Burdsall v. Davis, 58 Mo. 138; Drey v. Doyle, 99 Mo. 459; Masonic Mutual Ben. Ass'n v. Lackland, 97 Mo. 137. The evidence referred to was of course secondary and not the best evidence, but these objections were not made. (6) The verdict...

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