50 Ark. 348 | Ark. | 1887
The two poinits relied upon by the appellants to reverse the judgment in this case go back to the same question, viz: the admissibility of ' parol evidence, which, it is said, varied the terms of a written contract between the parties to the suit.
It is argued that the judgment cannot stand, because when the incompetent testimony which went to the jury is disregarded, the verdict is not sustained by evidence; and also because the court erred in basing one of its instructions to the jury upon the incompetent evidence.
The appellant’s acquiescence in the admission of the evidence, and his failure to make specific objection to the jury’s consideration of it, were sufficient to lead the court to believe that he waived his right to exclude the evidence, and desired to go to the jury unembarassed by any advantage to be gained by closing the lips of his adversary as to the transactions had between them. It would be manifestly unfair to hear his objection after he has voluntary taken his chance at winning the verdict on the line adopted, and lost.
The same reasons apply to the objection made to the verdict.
When the sufficiency of the evidence to sustain the verdict is the question to be determined, full weight and consideration must be given to relevant testimony which would have been excluded at the trial, had objection been made.
The rule excluding parol testimony, when offered to vary the terms of a written contract, was devised for the protection of the party to be benefitted by the writing. There is no rule or policy prohibiting, him from waiving the benefit. Tebbs v. Weatherwax, 23 Cal., 58; McCloud v. O'Neal, 16 Id, 392.
In Main v. Gordon, 12 Ark., 651, a verdict based, as it appears, solely on hearsay testimony, which was admitted without objection, was upheld by this court. The case is authority in point, but it is not necessary to sanction the doctrine to the extent it.seems there to be carried, to sustain the judgment in this case.
The case of Meyer v. Roberts, 46 Ark., 80, where the judgment was reversed because there was no competent evidence to. sustain the verdict, is not inconsistent with this decision. There the defence was the statute of frauds. The proof failed to show a valid contract, that is, one enforceable in the courts. Admitting the truth of all the evidence most favorable to the plaintiff, no'cause of action was proven, and the judgment failed.
In this case the objectionable testimony, if true, established the fact that the defendant was not indebted to the plaintiff in any amount, and that the mortgages were satisfied. In that event, there could be no recovery by the plaintiff.
Affirm.