Gran v. Spangenberg

We are unable to agree upon a result in this case. The order in which a trial shall be conducted is to some *45extent in the discretion of the trial court, and, unless its direction as to such order may have prejudiced a party, a new trial will not he ordered because of such direction. The defendant, having the affirmative on the evidence, was strictly entitled to close the arguments to the jury; but the issue was so simple and brief that the closing argument could hardly have been an advantage, and we cannot see that giving the closing to the plaintiffs could have prejudiced the defendant.

We are agreed that the trial court erred in its charge that the receipt of December 23,1891, conceding it to be wholly genuine, was for only $50, and was evidence of payment of no more than that sum. The receipt, as it now appears, was as follows: “$150. St. Paul, Dec. 22, 1891. Received of C. C. Spangenberg hundred an fifty dollars, on account. Gran, Bristol & Gran, L. T. G.” It is not to be supposed that the words “hundred an” were used without meaning anything by them. It is evident some word — some numeral— was omitted, it must be presumed, inadvertently. No one could read the receipt without concluding some hundred — one, two, or three, for instance — was intended. Where it is clear a word had by mistake been omitted from an instrument, the court will resort to anything in, or which was put on it, which points to the omitted word, in order to ascertain what it was. In this case the figures indicate the omitted word to be “one.” It is true that where words and figures are used to express the same number, and they do not agree, the words must prevail. That is because people are more liable to mistake in writing figures than words. Such is not this case. The words alone* show there was a mistake. Resorting to the figures to ascertain what word was omitted does not make the figures prevail over the words.

But upon the evidence, and having the original receipt before us, two of the judges are of the opinion, in which the other two do not concur, that the jury could not have found that the figure 1 after the dollar mark and the words “hundred an” were in the receipt when it was delivered by plaintiffs to defendant, nor that they were inserted by, or with the knowledge of, plaintiffs. If they were not, then no prejudice could result to defendant from the error in the charge, and a new trial ought not to be ordered be*46cause of it. As we cannot agree that defendant could have been prejudiced by the error, the order refusing a new trial must be affirmed.

(Opinion published 54 N. W. Rep. 933.)