Schlicker v. Gordon

Philips, P. J. I. This cause has been in the supreme court of this state on appeal taken by the defendants, and is reported in 74 Mo. 534. It appears from the opinion therein that the judgment was reversed solely on the ground of the error committed by the trial court in refusing a certain instruction asked by the defendants. On the re-trial of the case in the circuit court, this instruction, with those given on the former trial, was conceded to the defendants. On this trial, however, defendants requested other instructions, and [483] the principal error complained, of on this appeal is the imputed error of refusing one of said instructions. But this question cannot be considered. It has been repeatedly held by the appellate courts of this state, that, in order to preserve such action of the trial court for review here, the party appealing must, in his motion for new trial, call the attention of the trial court to this specific error. Griffin v. Regan, 79 Mo. 73; Acock v. Acock, 57 Mo. 154. The record before us wholly fails to show that the attention of the court was called to this error in the motion for new trial. II. The case was submitted to a jury for trial. There was evidence tending to sustain the issues on the part of the plaintiff, and, it may be conceded, that, in onr view, the weight of evidence tended to sustain the theory of the defence; but the jury, who are the sole judges of the weight of evidence, and the credibility of the witnesses, have believed the plaintiff’s evidence, and discredited that of the defendants; with their conclusion, especially after two trials, in which the issues of fact were found for the plaintiff, we cannot interfere. Any other course would break down all the barriers which the wisdom of ages has established as safe and yaluable.between the province of the bench and the jury. III. On the trial, evidence was introduced by plaintiff as to certain statements made by the defendant, Gordon, tending to show that he and Finke were the principals, and plaintiff was surety on the note in question. This •evidence was objected to by defendant, Finke, on the ground that he was not present, and could not be bound by any statement or declarations of his co-defendant. The overruling of this objection is assigned for error. The statements of Gordon, one of the defendants, in an action where there might be, as in this, either a joint or several judgment,' were certainly competent to bind him, and were admissible for that purpose. The objection of the defendant, Finke, was too broad, as it went to the exclusion of the statement for [484] all purposes. If he wished to have its effect properly limited, he should have asked the court to do so by an appropriate instruction, which he did not do. Babb v. Ellis, 76 Mo. 460. IV. At the trial, defendant sought to elicit from one of the witnesses the fact that defendants were sureties on other notes of the plaintiff, given, perhaps, to raise money in and about the prosecution of his contract for the erection of the building in question. I think this was rightly refused by the court. It tended to complicate the case with collateral issues, and, because if the defendants had been, or were, sureties for the plaintiff on other notes not connected with the o ne in controversy, and resting on entirely independent contracts, this could not legitimately aid the jury in determining the sole issue at trial, as to whether the relation of principal and surety existed, and, if so, who was principal and who was surety on this particular note. Such evidence was liable to do great mischief. The rule of safety in such cases is to adhere to the strict rule of evidence in order to avoid collateral issues, calculated to mislead the jury and prevent justice. Especially cannot this avail the defendants when the record shows that they, in effect, had the full benefit of such proof through other sources at the trial. City of Linneus v. Dushy, ante p. —; Carson v. Cummings, 69 Mo. 325. V. On the cross-examination of the plaintiff, who testified in his own behalf, he was asked if he had not, on a former trial of this cause, testified to certain facts, seemingly in conflict with his present statements or attitude. The court sustained an objection interposed to this question by plaintiff’s counsel, on the ground that defendant’s counsel read the question from their notes of the evidence taken at the former trial. It was immaterial from what paper, or memoranda, counsel drew the substance, or language of his question. He had a right to formulate it on any memorandum, or paper calculated to aid his memory as to its true import, or phraseology. [485] But it occurs to me that it is remarkable, if the defendants attached any importance to the inquiry, that they did not at once obviate the objection as to the mere manner of getting at the question, by presenting it in another form. The inquiry itself was not prohibited, but only the manner of it. Again, it does not appear from the bill of exceptions that defendants followed up the effort with any statement made to the court, that they proposed to show thereafter that the witness had made the statement indicated by the question. For aught that appears here, if this action of the trial court were held to constitute reversible error, the defendants might secure a reversal, where, in fact, they had no such contradictory evidence, and might not even attempt to offer , any. We think such practice comes within the denunciation of the rulings in State ex rel. Farwell v. Leland (82 Mo. 250); and Jackson v. Hardin (83 Mo. 175). Aside from these suggestions, it appears from the bill of exceptions that further on this witness admitted the substance of the facts predicated of the question to be true. The defendant thus having had the practical benefit of the admission, has no ground of complaint at the exclusion of the question. It may be as well to observe, in this connection, that there is a misconception in the minds of some practitioners as to the necessity or importance of laying any foundation for the admission of such contradictory statements. Being a party to the record, and the party in interest, the admissions and statements of the plaintiff against his interests, and in conflict with his present claim or attitude, are admissible in evidence against him whenever and wherever made. 1 Greenl. on Ev., sect. 171, note 2; Kritzer v. Smith, 21 Mo. 296-301; Morse v. Diebold, 2 Mo. App. 163. So it would have been perfectly competent for the defendants, in developing their defence at any stage of it, to put in evidence the former statements and admissions of the plaintiff coutradicting his present state486 merits, and inconsistent with his present claim. This-the defendants did not even attempt; but seem rather to have been content with the supposed error committed by the court in rejecting the inquiry made on cross-exami-nation. Their conduct' in this respect gives color to the - suspicion that they preferred some technical ground of' error to an earnest effort to secure a fair trial. The judgment of the circuit court is affirmed. All concur.