Wallich v. Morgan

Smith, P. J. This suit, which originated before a justice of the peace, was brought to recover the sum of one hundred dollars, which had been paid by plaintiffs to defendant to make binding a certain verbal contract for the sale and purchase of a hotel lease and furniture. The plaintiffs had j udgment in the court below to reverse which this appeal is prosecuted. I. No error is perceived in the action of the circuit court in refusing to permit the defendant to inquire of the plaintiff, George E. Wallich, whether or not he had previously brought suit in his own name for said one hundred dollars, because the record of such suit was the best evidence of the fact, if. it existed; and further because that suit could in no way affect or bind the other plaintiff who was not a party thereto. Gabriel v. Mullen, 30 Mo. App. 464. II. Nor is any harmful error perceived in the action of the circuit court in refusing to permit the plaintiff, Wallich, on cross-examination to state for what purpose he had procured in his name the written consent of the lessors to transfer said hotel lease to him. This was wholly immaterial and could not be made the basis of an impeachment of the plaintiff witness. If the testimony sought to be elicited tended to contradict the plaintiff, it was in a very remote degree. If it was an [473] error, it was so slight that no court would be justified in disturbing the judgment for that reason. III. Nor did the circuit court err in overruling the defendant’s demurrer to the plaintiffs’ evidence. If there was a discrepancy between the allegata and pro-bata which was material, as the defendant contends, in order to make that irregularity available, it was necessary for him to' have brought himself within the statutory rule for that purpose, of which there is no pretense. R. S., sec. 3565; Gaty v. Sack, 19 Mo. App. 470. IV. Nor is there error in the giving of instructions. The instructions must be taken in their entirety. Railway Co. v. Vivian, 33 Mo. App. 583. And when so taken the law applicable to the whole case, we think, was fairly embraced in them. The instructions given for defendant by the court were exceedingly favorable to his side of the case, and we think that he has no valid ground of complaint on that account. Upon an examination of the whole case, we have discovered no error prejudicial to the defendant; the judgment of the circuit court is therefore affirmed. All concur.