87 Kan. 418 | Kan. | 1912
The opinion of the court was delivered by
The plaintiff cleaned out a gas well for the defendant under an oral contract that he should receive $16 per day for the time consumed. On direct
The defendant argues that the best evidence was not produced and that the failure to produce the best evidence leaves the verdict without any support.
The plaintiff’s oral statement was perfectly competent when it was received and was amply sufficient to sustain a verdict in his favor. The probative force of the statement was not impaired by the subsequent discovery of the existence of the memorandum, and the statement not having been withdrawn from the jury it is still sufficient, especially in view of the fact that it is not disputed, to sustain the verdict.
No assurance is offered the court that the plaintiff’s, evidence was untrue, that the memorandum is different from his testimony, or that the result would be changed if the memorandum were produced. The defendant simply stands upon a rule of evidence and asks that the verdict and judgment be upset in order that the plaintiff may be compelled to prove a fact in a better way. The statute limits the court’s power of reversal to cases in which prejudice to substantial rights is made to appear. Prejudice is not presumed, and a judgment based upon uncontradicted evidence, competent when admitted but which- afterwards turns out to be of secondary quality, will not be reversed unless it can be said from the record that the result would probably be different if the primary evidence were produced.
So far it has been assumed that the memorandum
The judgment of the district court is affirmed.