Bagnell Timber Co. v. Missouri, Kansas & Texas Railway Co.

250 Mo. 514 | Mo. | 1913

OPINION.

BOND, J.

(after stating the facts as above).

Stare Decisis. I. There is no merit in the contention that the record fails to show any evidence tending to prove that the contract for the sale of the ties was made between the plaintiff and defendant. The record on that subject is exactly as it was when the case was last here, when it was ruled that it afforded ample evidence on which to submit that issue to the jury. This assignment of error is, therefore, ruled against appellant.

, Instructions. II. It is next insisted that the instructions given by the trial court were erroneous. It is a sufficient answer to say that on the last appeal this cause was reversed and remanded for the failure of the court to give two instructions set out in the opinion of the court which the trial court had refused to give at plaintiff’s instance and which this court held should have been given, and that those two instructions, except the changes necessary to transform them from declarations of law into instructions to juries, are identical with the ones which are complained of on the present appeal. We, therefore, rule this, assignment against appellant.

Self-Serving Testimony. III. Lastly, it is contended by appellant that the court erred in permitting plaintiff to show by the testimony of its attorney, who prepared this lien claim and notice thereof as for a sale made by P^^iff Graham & Miller, that when he presented this paper to the officers of the plaintiff corporation they objected to that statement, and that though he filed the notice in this form, he afterwards went back to the office of the plaintiff, found out the facts and prepared a new notice five or sis days later, showing that the sale was made to the defendant railroad company and the said Graham & Miller as joint purchasers. Under these facts we do not think this second notice is under the ban of the rule prohibiting the introduction in evidence of a self-serving statement. The testimony discloses that the original draft of the lien claimed and notice thereof, was prepared by the attorney without full consultation which his clients and that upon the ascertainment by him of the facts as to the parties to the contract, he filed one in strict accordance with their instructions.

It would be obviously unfair to use the first draft of that document against the plaintiff without permitting it to show the second notice made for the purpose of rectifying the former and showing the real nature of its claim against defendant. This matter of filing the claim for a lien was all one transaction and did not become otherwise by the lapse of the few days necessary for the attorney to ascertain the facts before amending his claim in accordance therewith. As the defendant had used a part of this transaction, the plaintiff was entitled that the whole of it should be disclosed to the jury.

IY. This cause has been tried in conformity with the laws declared on' its last appeal. The result is the judgment must be affirmed.

All concur.