156 Mo. App. 597 | Mo. Ct. App. | 1911
This is a suit to enforce a mechanic’s lien. On January 15, 1906, a firm composed of Clark, Booth & Cleveland entered into a contract for the sum of $5,200, to do all the plumbing, gas fitting and steam heating in two flats on Forest Avenue. O’Connell was the architect and builder of said flats, and he had a contract with the owners of the buildings for the entire
The defendants introduced evidence to show that the notice of plaintiff of its intention to file a mechanic’s lien on the property had not been served .upon William Jacobia. In part this evidence was a page of the hotel register at Corning, Kansas, showing the signature of Jacobia of the date of December 19, 1906, the alleged date of service claimed by plaintiff. The register was objected to for the reason that it was not properly identified. The evidence of defendant went to show that the materia] was sold upon the credit of the contractor; and that the plaintiff was a member of a trust or pool in violation of the statute.
The court instructed the jury upon the issues raised by the answer, except the defense that plaintiff belonged to a pool or trust in violation of the statute. At the request of plaintiff the court instructed the jury to disregard any testimony concerning such pool, trust or combination. Previously, however, all evidence addressed to that issue had been stricken from the record at the instance of plaintiff, following which plaintiff moved to discharge the jury on the ground that the introduction of
The jury returned its verdict upon two separate slips of paper. The first was a finding against the plaintiff and in favor of defendants, William .Jacobia, Thos. A. Haley and Leo Leslie, owners of the property sought to be charged with the lien, and the second was a finding in favor of the plaintiff against the other defendants for the amount of plaintiff’s claim. The judgment being against plaintiff and in favor of the property owners the plaintiff appealed.
The principal question raised by the appeal is, was the failure of the court to discharge the jury on plaintiff’s motion for the reason of prejudice engendered against it by the efforts of defendants to show that it belonged to a pool or trust forbidden by law, error? As a general rule we think it is well settled that in case where a party fails to sustain his plea although evidence has been received, by the jury in his favor on the issue raised thereby, it is not necessary to discharge the jury on the motion of the opposing party on the alleged ground of prejudicial error, unless it is made to appear to the satisfaction of the court that there was such prejudice as a matter of fact. It is said that: “It is well settled in this state, that where erroneous evidence has been admitted during the trial, the error in its admission may be cured, by afterwards withdrawing the objectionable evidence from the jury.” [Anderson v. Union Terminal Ry. Co., 161 Mo. 1. c. 420, and cases cited.] And it is held that where the court first admitted testimony and afterwards excluded it, there was no error, and that: “To hold otherwise would be to establish the rule of practice that when a court made a mistake and admitted incompetent testimony, -and afterwards discovered that it had done so, it could not effectually correct the error by instructions to the jury, but that in order to remove the sting of the error it would have to discharge the jury and award a new trial before a new venire. Such a rule could not
We are prepared to admit there may be instances where the wrongly admitted evidence would be of siuch a damaging character as to create prejudice against the opposing party that the court would not hesitate in the interest of justice to dismiss the jury and have the cause submitted to another. In such instances much must be left to the sound discretion of the trial judge. The judge in this instance did not think the jury had been prejudiced by what they had heard. And in view of the fact that the evidence was' directed to. an issue raised by defendants’ answer, which the plaintiff tacitly admitted was a good and lawful defense to plaintiff’s, right to recover, as it did not offer to, or move to strike it out, we believe the court did not abuse its discretion. As the defendants are not here to complain of the action of the court in refusing to submit the issue whether plaintiff was in a combination with a pool or trust in violation of law, we will not discuss the law relative to that question.
We do not think there was error in admitting the hotel register going to show that on the date in question Jacobia ivas at Corning, Kansas, and not in Kansas City when the notice, as plaintiff’s evidence tended to show, was served. The book was sufficiently identified and the fact that Jacobia’s name appeared therein at the time stated was of much probative force especially in view of the fact that it was shown to be his proper signature.
Nor do we attach any importance to the fact that the verdict of the jury was on two separate slips of paper as they were sufficiently identified and ordered entered by the court. Had the verdict been upon the same sheet of paper it would not have made it any better. The objection is purely technical.
