This is an action on an account for seven hundred and six apple barrels sold by plaintiff to defendant and for the storage of apples. Plaintiff recovered in the trial court.
account: change in book: instruction: record. Plaintiff’s wife kept an account of the sale in a book, he being unable to read or write. It was contended at the trial and is now urged here that the book had been' changed by erasing the name of one ° ° Waterman and inserting that of this defendant. All the evidence heard on this head showed that the change charged had not been made. The book itself containing the account was introduced to show that the change had been made. But the account as it appears in the book is not preserved in the record, nor is there any description of it. The whole matter is made to stand on the statement in the abstract that the ’ book was introduced. The court refused an instruction with reference to this alleged change of account, we presume on the ground that there was no evidence upon which to -base it. We must rule this to have been correct, since all the evidence preserved in the record not only fails to show any change but affirmatively shows there was none.
Watjomey“and commuiacationf But in order to show there had been a change made a witness, an attorney at law, was introduced for the purpose of testifying that he had on one occasion seen the book when it contained a charge against Waterman which was changed to this defendant. This witness stated that when he saw the book he had it, or examined it, as the attorney for plaintiff. On objection the witness was very properly mot allowed to testify.
*484_. husband a„d wife: agency. The plaintiffs wife was offered as a witness. The things she testified to for plaintiff relating to this transaction, were those matters which she attended to as the agent of her husband. This agency was ma¿e to appear by her own evidence. There was, therefore, no objection to this. Leete v. Bank, 115 Mo. 204.
Estoppel: suit against a third party: suggestion of the defendant. Defendant complains of the refusal of his third instruction which told the jury that if plaintiff prior to bringing the present action had instituted an attachment suit against Waterman for the claim here sued upon,there was an estoppel in favor of defendant. The instruction was properly refused. The suit was shown to have been instituted at the instance and request of this defendant, this plaintiff relying upon him and following his suggestion in the matter. It was dismissed as a futile effort without trial. There was no element of estoppel.
Pí££dBañdhwMe: ject: appellate practice. We have stated above, that the wife’s evidence was competent by reason of her agency. There was, however, evidence showing her to have been jointly interested with her husband, the plaintiff, as a partner. And it is now urged here, for the n • first time, that there was a defect of parties plaintiff; that she should have been joined as a party. The objection is ill-timed. The cause was tried without proper objection in this respect and it is now too late to make a question of it.
The criticism made on plaintiff’s instructions are not well founded. The judgment was undoubtedly for the right party and it will be affirmed.
All concur.