Filley v. Talbott
18 Mo. 416
Mo.
1853
Check Treatment
RylANd,- Judge,

delivered the opinion of the court.

The question of most importance in this case, arises in regard to the witness, Porter. He was called and testified about the contents of a bill of merchandise, bought of the plaintiffs by Yanosdell & McCoun. He spoke of the difference in the prices charged for similar articles, as appeared from the bill of Yanosdell & McCoun, and the bill which was offered in evidence by Talbott. The bill of Yanosdell & McCoun was not before the witness — was not in court; nor was its absence accounted for. After the witness had testified about the bill of Yanosdell & McCoun, and whilst he was still before the court as a witness, the plaintiffs objected to his testimony in regard to the Yanosdell & McCoun bill, for the reason, that the bill itself should be produced; the court overruled the objection, assigning as a reason, that it came too late.

The testimony of this witness was incompetent; he could not testify as to the contents of the bill of Yanosdell & Mc-Coun ; the bill itself was the evidence by which the witness knew that there had ever been a sale to Yanosdell & McCoun of merchandise by the Filleys ; it gave him the evidence of the sale, the items and the price : these he was called to state. It *419is, then, most obvious, that be was speaking of the contents of the absent bill. The court below was apprised of the illegality of this evidence, but refused to reject it, because the plaintiff’s objection came too late. In this the court erred; there was the witness still on the stand, still testifying before the court, and it was the duty of the court to withdraw the evidence from the jury, and direct them not to consider it in their verdict. It was not too late to remedy the error, and it should have been done as soon as the court had its attention called to it. The judgment for costs of the suit, too, is incorrect; it should have been for the costs of the appellate court only.

The judgment below is reversed and the cause remanded,

the other judges concurring.