This case is here now on a second appeal by the same party. The nature of the controversy will be understood by consulting our former opinion, 56 Mo. App. 236.
After an examination of the several points presented in appellant’s brief, we find in none of them *377;any substantial reason for reversing, the judgment. Most of the matters objected to were settled at the former hearing.
As to the first complaint, that the court erroneously modified plaintiff’s fourth instruction by adding ■the words, “unless such statements were made in the presence of plaintiffs’ agent, and were not denied or ■called in question by such agent,” it is sufficient to say that the record shows no exception saved to this action of the court. Plaintiffs’ counsel asked the instruction which, in effect, told the jury that if Huston actually delivered possession of the goods to Wells, as agent for plaintiffs, then no statement or representations of said Huston which were made after such possession was changed could affect plaintiff’s title, and to this the court added the words above quoted. In this modified form the instruction was given, and that, too, without objection on the part of plaintiffs. They can not therefore now complain of the court’s action in that regard. Besides this, the instruction, as modified, is a repetition of that given at the first trial, and which this court approved when the case was here before.
It is further objected that the court erred in refusing the following instruction:
“7. Possession, as used in these instructions, means the surrender of the goods and property mentioned in evidence, by Huston to Smith, Heddens & Company, or their agent, and if you believe that Huston did surrender said goods and property to one Wells, as agent of Smith, Heddens & Company, the title passed out of Huston and vested in said Smith, Heddens & Company, notwithstanding said goods and property were not removed from the building in which they were situated.”
The court was right. As applied to a case of this nature, such a definition of possession was improper *378and wonld likely mislead the jury. The change of possession here required is that open, notorious, and unequivocal transfer, such as to apprise the community that the title had passed out of Huston into the plaintiffs. Claflin v. Rosenberg, 42 Mo. 439. The possession or change of possession, from Huston into the plaintiff was properly defined in other instructions, wherein the jury were told that there should have been “an open, visible, and actual change of possession of said goods from said Huston to the relators, and that the said possession was retained by said relators until said levy was made,” etc.
We discover no substantial objections to other instructions given at defendant’s request. They are in the main the same as we approved when the case was here before, and seem to properly declare the law applicable to the issues involved. The second instruction is, perhaps, subject to the criticism of giving .undue prominence to the fact testified to, that plaintiffs’ agent had, when the goods were seized, telegraphed to the sheriff to come and place him in possession; but we do not deem this sufficiently prejudicial to warrant a reversal. And alike harmless, we think, was the testimony of Mrs. Huston, wherein she denied that Wells, plaintiffs’ agent, was, as he testified, at her house, at the time of the transfer of the stock of goods, or that he explained to her the nature of the mortgage, or bill of sale. We much doubt the admissibility of such evidence, as it concerned a mere immaterial matter; but think it not of sufficient importance to justify a reversal of the judgment.
I know of no rule of evidence, under the statute or at common law, that would exclude the testimony given by Flynn and Yanstone, as to the declarations made by Huston in the presence of Wells, plaintiffs’ *379agent, because of the admission that Huston was dead at the date of the trial. According to this testimony, when they (Flynn and Yanstone) went to levy on the goods, Huston stated in Wells’ presence and hearing that he (Huston) then had possession of the’goods, and they further'testified that to this declaration Wells made no reply. This belongs to that class of evidence known as implied admissions — statements made to and in the presence of the party, and calling naturally and properly for a reply from men similarly situated, and being acquiesced in by silence, are to be regarded as admitted. 1 Greenl. Ev., sec. 197; 2 Wharton, Ev., sec. 1136. Ball v. City of Independence, 41 Mo. App. 469.
The effective force of such evidence comes from the silent admission by the party in whose presence the statement is made and not from the mere statement. Hence the court properly told the jury that such declarations from Huston should be disregarded, unless uttered in presence of plaintiffs’ agent, Wells, and not denied or called in question by such agent.
Flynn and Yanstone were not disqualified from testifying as to such statements and tacit admissions, because of Huston’s death. Huston was not, within the meaning of the statute (section 8918, Revised Statutes, 1889) “one of the original parties to the contract, or cause of action in issue.” Flynn and Yanstone were competent witnesses under the common law, and it has been repeatedly held that said statute was an enabling and not a disabling statute. The effect of the provision is that in case where a party might testify in his own behalf at common law, he may still do so, notwithstanding the other party’s death; the proposed witness stands, in regard to testifying, precisely as if the statute allowing parties to *380testify had not been enacted. Rapalje on Witnesses, sec. 123; Angell v. Hester, 64 Mo. 142.
Since we discover no substantial error in the record, the judgment will be affirmed.
All concur.