delivered a concurring opinion.
I concur in the result of the opinion, but do not concur in the views therein expressed touching the *161admissibility of oral evidence in an action at law upon the contract, varying its terms and conditions. For that reason I prefer to place my concurrence solely upon the ground hereinafter stated.
The Supreme Court has repeatedly decided that, where it is manifest that if the judgment were reversed the result upon a new trial would be the same as upon the first trial, the judgment will not be reversed, even though the case has been tried upon an improper theory. Conley v. Doyle, 50 Mo. 234, 235. Or even though the court proceeded erroneously and irregularly. Mississippi Bridge Co. v. Ring, 58 Mo. 491, 495. The' reports are full of cases where judgments were affirmed on appeal as being manifestly for the right party, notwithstanding intervening errors. Hedecker v. Ganzhorn, 50 Mo. 154; Jackson v. Magruder, 51 Mo. 55; Mo. Glass Co. v. Sewing Machine Co., 88 Mo. 57; Ghio v. Beard, 11 Mo. App. 21; Brown v. Railroad, 20 Mo. App. 427; Fell v. Coal Co., 23 Mo. App. 216.
I am free to concede that the exercise of this power-should be used with great caution by appellate courts,, but this is a case which eminently calls for its exercise'. There is not even an intimation found in the entire record that the plaintiff was not entitled to a reformation of the contract in equity, provided he had proceeded to obtain such reformation, or that he was' not entitled to a judgment at law upon the contract thus reformed, or that the damages are excessive. The testimony contained in the record conclusively points to the fact that the plaintiff was entitled to the identical ultimate relief which he obtained, and that the court would have been justified, under the provisions of section 3567, to cause an amendment of the pleadings, if necessary.
Under these circumstances, I do not feel warranted to reverse the judgment, even conceding that the mode-of procedure by which the result was reached was irregular or erroneous.