Tufts v. Morris

GOODE, J. Plaintiff was a dealer in soda-water form-tains in the city of Boston, Massachusetts. Defendant gave him a written order for a certain kind of fountain with rather elaborate specifications as to its size and style. Plaintiff did not have the kind of fountain ordered in stock in his store in Boston, and either bought another one to substitute for it, or took one from his stock in New York City, which defendant claimed differed in important respects from the one fi'O ordered, so he refused to pay for it, and this action was instituted to recover the purchase price. [391] Tbis case was in tbis court before and tbe decision of that appeal will be found in 87 Mo. App. 98. Tbe only question wbicb requires consideration is an alleged error committed by tbe trial court in permitting tbe defendant to testify that tbe original contract, as signed by bim, was altered after be bad signed it, without bis consent, by interlineations wbicb substantially changed its sense. Appellant’s contention in regard to tbis alleged error is that, inasmuch as tbe execution of tbe contract sued on was not denied under oath, said testimony of tbe defendant tending to show it bad been altered was inadmissible. We are of tbe opinion appellant can not be beard to make tbis objection in tbe state of tbe record; for it appears that be himself put tbe defendant on the stand in tbe first place, and tbe following testimony was thereupon given by tbe defendant: “Q. I will get you to state if tbis is your signature? A. Yes, sir; it is my signature, but that (indicating) is not written as it was; thi3 part has been added in since I signed it, there has been a portion added in since I signed that contract.” Tbis testimony went in without objection. Afterwards, when tbe defendant took tbe stand in bis own behalf, be made substantially tbe same statement, and then tbe appellant objected; but just what form tbe objection took is not certain, as it is stated two ways in tbe abstracts furnished by tbe parties. Tbe appellant’s abstract says it was objected to for the reason that tbe execution of tbe contract was not denied under oath; while the respondent says tbe objection was as follows: “1 want tbe court to understand that we are objecting to bis contradicting that on tbe stand; he can not impeach it in that way.” Tbe court overruled tbe objection for tbe reason that tbe plaintiff bad put tbe witness on tbe stand and asked bim [392] about the contract. It will be seen that the objection as stated by the appellant was sufficient to call into question the competency of the evidence on the ground now urged against its admission, whereas, the one stated by the respondent was entirely too vague and general. No written objections were filed by the appellant to the respondent’s abstract of the record, and, hence, his version of the matter will have to be taken as concurred in by the appellant and as being the true one. But at most, the testimony given by the respondent when he testified in his own behalf, was but a repetition of what he testified when the plaintiff put him on the stand, which was allowed to go without challenge and it certainly ought not to be reversible error that he was afterwards permitted to repeat it. On the second trial, testimony was introduced by the defendant tending to show that he had offered to return the fountain which was shipped to him, and receiving no answer from the plaintiff, had stored it away without using it. On this evidence an instruction was given in a form which is free from the objectionable features contained in the one condemned in the opinion on the former appeal. The judgment is affirmed. All concur.