
    J. W. TUFTS, Appellant, v. T. J. MORRIS, Respondent.
    St. Louis Court of Appeals,
    February 18, 1902.
    1. Evidence: ADMISSION OF INADMISSIBLE, NOT REVERSIBLE ERROR, WHEN. When the testimony of a witness is inadmissible, but the party objecting had already in the course of the trial introduced the same witness and caused him to testify, it is not reversible error to permit the witness to repeat what he had already sworn to.
    2. Abstract of Record: TAKEN AS CONCURRED IN, WHEN. Where no written objections have been filed by the appellant to the respondent’s abstract of record, its version of any matter in the record will be taken as concurred in by the appellant, and as being the true one.
    Appeal from Butler Circuit Court. — Hon. J L. Fori, Judge.
    AENIRMED.
    
      E. B. Lentz for appellant.
    (1) The court erred in permitting the defendant to testify over the objection of plaintiff, as to conversations had with plaintiff’s agent, concerning the subject-matter of this contract at the time of and prior to the execution of the written contract, and in refusing to strike same out; all such prior and contemporaneous agreements were merged into the written contract. 1 Greenleaf on Ev., sec. 215; Hair Oo. v. Wolmsley, 32 Mo. App. 115; Tracy v. Hon Works, 29 Mo. App. 355; Gooch v. Conner, 8 Mo. 391. (2) Where any petition or other pleading shall be founded npon any instrument in writing, charged to have been executed by the other party and not alleged therein to be lost or destroyed, the execution of such instrument shall be adjudged confessed, unless the party charged to have executed the same deny the execution thereof by answer or replication, verified by affidavit. R. S. 1899, sec. 746.
    
      A. D. Sight for respondent.
    Counsel for appellant states that this suit is founded upon a written contract or order charged to have been executed by the defendant, and that the appellant denies the execution of the instrument, but not under oath. As to the question, whether or not the signature to an instrument was signed by the party charged, or purporting to have signed the instrument, the denial of the signature must be made under oath. In this case Mr. Morris admits the signing of the contract, the signature, but as a witness on behalf of the plaintiff or appellant, states in substance, that while he signed the paper, it had been changed and altered since he signed it.
   GOODE, J.

Plaintiff was a dealer in soda-water form-tains in the city of Boston, Massachusetts. Defendant gave him a written order for a certain kind of fountain with rather elaborate specifications as to its size and style. Plaintiff did not have the kind of fountain ordered in stock in his store in Boston, and either bought another one to substitute for it, or took one from his stock in New York City, which defendant claimed differed in important respects from the one fi'O ordered, so he refused to pay for it, and this action was instituted to recover the purchase price.

Tbis case was in tbis court before and tbe decision of that appeal will be found in 87 Mo. App. 98.

Tbe only question wbicb requires consideration is an alleged error committed by tbe trial court in permitting tbe defendant to testify that tbe original contract, as signed by bim, was altered after be bad signed it, without bis consent, by interlineations wbicb substantially changed its sense.

Appellant’s contention in regard to tbis alleged error is that, inasmuch as tbe execution of tbe contract sued on was not denied under oath, said testimony of tbe defendant tending to show it bad been altered was inadmissible.

We are of tbe opinion appellant can not be beard to make tbis objection in tbe state of tbe record; for it appears that be himself put tbe defendant on the stand in tbe first place, and tbe following testimony was thereupon given by tbe defendant:

“Q. I will get you to state if tbis is your signature? A. Yes, sir; it is my signature, but that (indicating) is not written as it was; thi3 part has been added in since I signed it, there has been a portion added in since I signed that contract.”

Tbis testimony went in without objection. Afterwards, when tbe defendant took tbe stand in bis own behalf, be made substantially tbe same statement, and then tbe appellant objected; but just what form tbe objection took is not certain, as it is stated two ways in tbe abstracts furnished by tbe parties.

Tbe appellant’s abstract says it was objected to for the reason that tbe execution of tbe contract was not denied under oath; while the respondent says tbe objection was as follows:

“1 want tbe court to understand that we are objecting to bis contradicting that on tbe stand; he can not impeach it in that way.”

Tbe court overruled tbe objection for tbe reason that tbe plaintiff bad put tbe witness on tbe stand and asked bim about the contract. It will be seen that the objection as stated by the appellant was sufficient to call into question the competency of the evidence on the ground now urged against its admission, whereas, the one stated by the respondent was entirely too vague and general. No written objections were filed by the appellant to the respondent’s abstract of the record, and, hence, his version of the matter will have to be taken as concurred in by the appellant and as being the true one. But at most, the testimony given by the respondent when he testified in his own behalf, was but a repetition of what he testified when the plaintiff put him on the stand, which was allowed to go without challenge and it certainly ought not to be reversible error that he was afterwards permitted to repeat it.

On the second trial, testimony was introduced by the defendant tending to show that he had offered to return the fountain which was shipped to him, and receiving no answer from the plaintiff, had stored it away without using it. On this evidence an instruction was given in a form which is free from the objectionable features contained in the one condemned in the opinion on the former appeal.

The judgment is affirmed.

All concur.  