136 Mo. App. 24 | Mo. Ct. App. | 1909
(after stating the facts).— Taking up the proposition as to the modification of four of the instructions asked by appellant, we cannot notice this exception because, while the brief of the learned counsel for appellant sets out what they claim was addéd to these instructions by the court, it does not appear by the bill of exceptions that those were the additions made by the court. We are therefore shut off from considering this assigned error as ground for reversal. Assuming, however, that the clause added by the court to these instructions was, as stated by counsel to be, “unless you further find and believe that the plaintiff accepted from Roley & Co., in full satisfaction of defendant’s liability on the said orders, a demand note of the said Roley & Co., intending then and there to relieve the 'defendant from such liability on his said order,” we will remark that under the pleadings in the case that addition should not have been made to the instructions asked by appellant, but, as before observed, in the state of the record we cannot reverse for that error. We are, however, compelled to reverse this case for an error that undoubtedly was prejudicial to the appellant, exception to the ruling of that court at the time that it occurred having been duly taken and saved. That error consisted in allowing respondent, over the objection of appellant, to show by the cashier of the bank while under cross-examination, that the bank had refused to sue Roley & Co., and the two Thorps and that, therefore, the plaintiff in this action should not be permitted to recover at all, until it had shown that it had exhausted its remedy; that under any theory of law the defendant could only be surety. The court al-' lowed this to be done over the objection and exception