149 Mo. App. 594 | Mo. Ct. App. | 1910
Appeal from an order sustaining a motion for new trial. The petition is in three counts, of which the first asked judgment for five hundred dollars as the price of fifty shares of the par value of ten dollars each, of the capital stock of the Louisiana Purchase Exposition Company, alleged to have been subscribed by defendant, the second for two thousand dollars as the purchase price of two hundred shares, and the third was a variation of the second count and declared on the same subject-matter. The action on the last count was dismissed at the trial and nothing need be said about it. The main defense was defendant did not subscribe for stock, and in an answer under oath, he denied he signed either of the alleged contracts of subscription. Strong evidence was introduced that he did subscribe, and indeed we are asked to say the evidence was conclusive upon this issue and hence the supposed error for which the court granted the new trial was, in any event, harmless. Although defendant did not go on the witness stand to testify regarding his alleged subscription, the entire evidence bearing on the issue required a finding by the jury; that is to say, was of such a character the jury might have drawn an in
It is further said the court held the newspaper publication had been admitted improperly simply because it repeated a letter written by defendant to the newspaper, whereas the letter itself should have been introduced, or a basis laid for secondary evidence of the contents by proving the original was lost. The court spoke of the publication as being incompetent on that ground, but held tlie whole article incompetent. Moreover, it is apparent that not only the part which recited the letter, but the part which said defendant had subscribed for twenty-five hundred dollars worth of stock, was incompetent, and should have been excluded as hearsay.
The last proposition is that, if competent, the publication was harmless in view of the strong evidence tending to prove defendant had subscribed. The newspaper article was prejudicial in tendency and apt to tell with the jury against defendant. If it conclusively appeared from other evidence the defense was not well taken, we would say a new trial ought not to have been granted because of the admission of the article; but, as said supra, although the evidence was cogent against defendant, we do not deem it conclusive, and think its force was augmented by the admission of an item of incompetent evidence.
The order for new trial will be sustained and the cause remanded.