98 Mo. 376 | Mo. | 1889
— This case is here for the second time. A sufficient statement appears in the opinion heretofore delivered in 78 Mo. 13. Upon the retrial, the defendant filed an amended answer in which, after admitting
It is not complained that the court committed error in refusing defendant’s instruction or in declaring the law in the one given for the plaintiff, on that plea, but that it assumed a fact, i. e., that a certain payment was of the costs in a suit. Conceding that the instruction is susceptible of that construction, the evidence on that question of fact is uncontradicted. The only witness who spoke upon the subject testified that the payment “ was entirely to pay the costs of the suit, it was no settlement whatever of the claim.” The assumption of a fact as proven in an instruction when there is no controverting evidence as to that fact, is not reversible error. Carroll v. Railroad, 88 Mo. 239.
. The criticism on the other instructions given for the plaintiff does not extend to the soundness of the legal proposition they contain, but is based upon the fact that in each of them the jury are upon the facts therein hypothetically stated directed to find for the plaintiff, without direct reference to the case presented on the issues by the. instructions for the defendant in which they are in like manner directed to find for the defendant ; thereby, as is contended, authorizing a verdict for the plaintiff upon his casé, or a phase of it, and ignoring that of the defendant. If no instructions had been given for the defendant, and if each of plaintiff’s instructions is read by itself they would each be obnoxious to this criticism, but if read in their natural order, in connection with the instructions for the defendant as a whole,'
No error materially affecting the merits of this action appearing upon the record, the judgment of the circuit court is affirmed. All concur, Barclay, J., in the result.
