Cloos v. Prussman

• Decision Date: 07 November 1927
• Docket Number: No. 15444.,15444.
• Parties: CLOOS v. PRUSSMAN.
• Court: Missouri Court of Appeals

300 S.W. 315

CLOOS v. PRUSSMAN.

No. 15444.

Kansas City Court of Appeals, Missouri.

November 7, 1927.

Rehearing Denied December 5, 1927.

Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.

"Not to be officially published."

Action by Jacob Cloos against A. L. Prussman. Judgment for plaintiff, and defendant appeals. Affirmed.

Hunt & Hunt, of Rockport, for appellant. Lee Mullins, of Rockport, for respondent.

WILLIAMS, C.

This is an action for a balance due on a contract. The plaintiff, respondent herein, contracted with the defendant, appellant herein, to build for defendant a house in the city of Mound City, Holt county, Mo. The facts disclosed that there was a written contract between the parties, but that the terms of the written contract were not carried out; that thereafter an oral contract was entered into, by the terms of which the original contract was to be carried out, except that the defendant was to pay any increase in labor or material between the time of the signing of the written contract and the verbal contract.

After the house was completed the defendant gave respondent a check for $301. A notation was made upon the check, "Paid in full on house." Appellant claims that this notation was changed, which was denied by respondent. A verdict and judgment were rendered in favor of the plaintiff for the advance in price of material, $424.84; increase in the price of labor, $157.40; and interest, $316.

After an unsuccessful motion for a new trial and in arrest of judgment, the defendant appeals.

Appellant's first contention is that the court erred in giving an instruction to the jury which ignored certain defenses. Said instruction, it is contended, ignored a credit of $400 which was due the respondent. It may be conceded, as a general rule, that the ignoring of a credit would be error. However, the jury in its verdict allowed a credit of $400.

The rule by which appellate courts are governed is that a judgment should not be reversed on account of an error by the court below, when it clearly appears that the error was really harmless and did not prejudice the complaining party. As Judge Philips put it:

"Courts" should "not sacrifice the ends of justice upon the sharp edge of technicality." Noble v. Blount, 77 Mo. 235, loc. cit. 239.

The doctrine of harmless error is well settled in this state. Hayden v. Independent Gravel Co. (Mo. App.) 186 S. W. 1193; Roper v. Wadleigh (Mo. App.) 219 S. W. 982.

We therefore hold that, under the verdict, the error in instruction No. 2 was harmless.

It is urged by appellant that the court erred in refusing instructions A and B offered by the appellant. These instructions were drawn upon the theory that, if the notation on the check was changed by the plaintiff and cashed by him, the verdict will be for the defendant. The notation, at most, should be but a receipt. Receipts are not conclusive. Schwiete v. Guerre, 175 Mo. App. 687, 158 S. W. 402. The instruction offered, which was refused, did not take...