
    Phillips & Robinson, Appellees, v. S. W. Hazen, Appellant.
    1 Admission of .evidence: harmless error. Although a witness had no recollection of the subject interrogated about independent of a transcript of his evidence on a former trial, his statement that his testimony on the former trial was correct according to his recollection at that time, is held to have been without prejudice.
    2 Evidence: waiver of objection. Objection to a ruling on the ad-mission of testimony which is not insisted upon will be deemed to have been waived.
    3 Second appeal: review of evidence. Where the appellate court has once passed upon the sufficiency of the evidence it will not review the same evidence again submitted on a retrial.
    4 Evidence: documents : failure to affix revenue stamps, The admissibility in evidence of an instrument required by the revenue • law to be stamped is not affected by the absence of the stamp.
    
      
      Appeal from Palo Alto District Court.— Hon. A. D. Bailie, Judge.
    Saturday, December 15, 1906.
    Action to recover on a real estate commission contract. Prom a verdict and judgment in favor of plaintiffs, the. defendant appeals.—
    
      Affirmed.
    
    
      Geo. E. Clarice, for appellant.
    
      E. A. Morling, for appellees.
   Bishop, J.

This is the second appeal in this case. Por the opinion on former submission, see 122 Iowa, 475.

The. plaintiff firm is engaged in the real estate business, and it is the contention made in the petition that defendant placed in their hands for sale a farm owned by him situated in Palo Alto county, and' consisting of one hundred and sixty acres; that the compensation agreed upon for their services in case they found a purchaser was the sum of $1 per acre. ’It is alleged that a purchaser was found by them in the person of one Schneider, with whom defendant contracted a sale. The defendant in answer denied any employment of plaintiffs, and denied that his sale to Schneider was brought about by or through plaintiffs.

I. At the time the contract with Schneider was drawn up, the defendant was absent from the State; his father acting for him in the premises. A blank form for contract was used, and one Martin acted as scrivener. Martin, being called as a witness by plaintiffs, was asked who furnished the blank used, and he answered that he did not remember. He was then shown a transcript of his evidence taken upon a former trial of the ease, following which he answered, in response to a question by defendant’s counsel, that he had no recollection on the subject independent of the transcript. He was then permitted to testify over the objection of defendant that his statement made as a witness on the former trial as to the person who furnished the blank was correct according to his recollection at the time of such trial. Later on, plaintiffs offered the transcript in evidence, to which defendant objected for various reasons. According to the. abstract, as amended by appellee, the objection was not ruled upon, and so much of the transcript as related to the matter in hand was read in evidence. It is a contention for error that the examination of the witness was improper, and the transcript -incompetent. We may concede that the examination of the witness was improper, but his testimony amounted to no more than a declaration on his part that on the former trial he had testified to the truth according to the best of his recollection. From that alone no prejudice could have arisen.

As no ruling on the objection to the transcript was insisted upon, there was no error in permitting the same to be read; the objection must be regarded as waived. Murphy v. McCarthy, 108 Iowa, 38. Moreover, there was other testimony competent in character, addressed to the same subject-matter, and which remained in the record uncontradicted. We conclude there was no error.

II. One of the members of the plaintiff firm was permitted to testify to his conversation with O. L. Hazen, father of defendant, and this over the objection of defendant that no authority on the part -of the father to act l11 Ü113 premises was shown. The evidence' was to all intents and purposes the same as at the previous trial, and, in our opinion on the former submission, we held that there was sufficient evidence to take the question of authority to the jury. We need not go over the subject again.

III. During the course of the trial plaintiffs offered in evidence the contract of sale executed between defendant and Schneider. This was objected to for that no revenue stamp was attached thereto as required by a revenue law of Congress then in force. The objection was , , . . , overruled, and we think properly so. (Jon- . .it ceding that the instrument was one required by the law of Congress to be stamped, the admissibility was not impaired by the absence of a stamp. This we have repeatedly held. Bottorff v. Lewis, 121 Iowa, 27; State v. Glucose Co., 117 Iowa, 524.

IY. It is said that the verdict and judgment were not warranted by the evidence. Our reading satisfies ms to the contrary. It follows that the judgment must be, and it is, affirmed.  