180 Mo. App. 577 | Mo. Ct. App. | 1914
Plaintiff sued to recover a sum of money paid under mistake and prevailed in the circuit court. The defendant has appealed.
Plaintiff purchased a stock of goods and some land as he claims from the defendant through her husband acting as the defendant’s agent. Plaintiff alleges in his petition that the amount he was to pay for the stock of merchandise was to be the wholesale-price less ten per cent discount, except for the groceries therein; that an invoice was taken of the stock and entered upon a book, with figures set opposite each item therein contained indicating the invoice price, but that in adding these figures a mutual mistake was made of $565.75 in favor of the defendant;, that the erroneous amount, including said excess, was paid to the defendant by the plaintiff as and for the purchase price of the said stock of goods and the land under the belief and .impression upon the part of each of them that it was the correct amount.
The respondent also asserts that Curd v. Brown, 148 Mo. 82, 49 S. W. 990, cited in the Taylor case, has been overruled by the opinion in the case of Weiermueller v. Scullin, 203 Mo. 466, 472, 101 S. W. 1088. In this assertion respondent is partly correct but the Gt^rd case was not overruled as to the point involved in the Taylor case. Those cases turned upon the right of the witness to testify as to the facts occurring subsequent to the contract or transaction involved as the basis of the litigation and subsequent to the death of the party.
In addition to what is said in the Taylor case, by this court, relative to the opinion of the Supreme Court in Clark v. Thias, 173 Mo. 628, 73 S. W. 616, it may be stated that the latter case involved the right of the agent to testify when his principal was dead and it is said, after citing without criticism Robertson v.
It is stated in appellant’s brief, that “The invoice of the stock of merchandise was made by the plaintiff and his brother, (J. P.) Bone. The extensions, additions and multiplications were made by the plain
The appellant also insists that her deceased husband was the owner of the merchandise and the land sold, or at least that there was testimony tending to prove that he owned an interest in some of it, but this question was submitted and found against the appellant on a declaration of law asked and given in her behalf and as there was substantial testimony on which to base the finding we cannot reverse the judgment on that ground.
On account of the error of the trial court in admitting the testimony of the plaintiff as to transactions had with the defendant’s deceased husband, upon which he bases his right of recovery here, the judgment of the trial court is reversed and the cause remanded.