151 Mo. App. 75 | Mo. Ct. App. | 1910
Action in replevin for possession of a stove and sewing machine. Action begun before a justice of the peace, appealed to the circuit court, where, upon trial before a jury, a verdict was .returned in favor of defendant and plaintiff has appealed. The plaintiff had sold the articles in question to defendant upon the installment plan and defendant was to pay one dollar each week until the amount of the purchase price had been paid. He had .paid a large part of the purchase price when the
During the progress of the trial the wife of defendant was offered as a witness in his behalf, and was allowed to testify over the objection of plaintiff. The defendant had previously testified that he made his wife his agent to look after having repairs made on the stove and the machine. The wife also testified that her husband had directed her to have this done. It is now insisted that the wife could not testify as to her own agency for her husband. In some early cases in this state such was .held to be the law, but they have been overruled and the rule is now firmly established that the agency of the wife or husband for the other may be established by the testimony of the one claiming to have acted as agent for the other. [Reed v. Peck, 163 Mo. 333, 63 S. W. 734; Orchard, v. Collier, 171 Mo. 390, 71 S. W. 677.] It is further contended that the wife was permitted to tes
It seems that at the time the machine and stove were sold to defendant that printed warranties were furnished by the plaintiff, and at the time of the trial one of these had been partly destroyed, and defendant was permitted to testify as to the contents of the portion which had been destroyed. On cross-examination counsel for plaintiff presented to defendant a paper and asked him if it was not a copy of the warranty. Defendant testified that he thought it was. Thereupon the plaintiff asked the court to strike out the testimony given by defendant as to the contents of the warranty which had been furnished him and had been partially destroyed. This the court refused to do, and plaintiff now assigns this as error. There was no error committed in this respect. Upon proof by defendant that the warranty furnished him had- been partially destroyed it was competent for him to testify as to its contents. The fact that it- afterward developed that the plaintiff had in his possession a copy of the warranty did not render this testimony incompetent nor make it incumbent upon the court to strike it out after it had been given. If defendant, in his testimony, did not give the contents of the warranty correctly and plaintiff had an exact copy he co.uld have offered his copy for the purpose of contradicting the defendant and also for the purpose of showing what the warranty given actually contained, but the fact that plaintiff might have offered this testimony did not render the testimony already given by the defendant incompetent, and hence, there was no error committed by the court in refusing to strike it out.
The respondent has- filed no brief in this court, and after a careful examination of the record in this cause, our conclusion is that no error was committed in the trial thereof, and the judgment will, therefore, be affirmed.