¶1DISSENTING OPINION.
¶2I cannot concur in reversing that part of the judgment in this case based upon the finding of the jury upon the fourth count, but think that the judgment should be affirmed in toto. I do not agree with my brethren that the words “in said game and by said gambling device” used in the fourth count of the - petition state the “nucleus” of plaintiff’s cause of action as to the three hundred dollars’ certificate, and precludes all proof of the manner in which the certificate was obtained except that it was won as a wager in the game of poker. As I view it the “nucleus” of the cause of action was the fact that defendants conspired together to obtain this certificate of deposit wrongfully and without consideration’, and that they did so obtain it. If I am right in this then it is clear that the cause of action alleged could be proven without proving that the property was obtained by winning it at a game of poker. If by the use of the words “in said game and by said gambling device” in the petition, defendants understood that they would only be required to meet proof that the property was wou at a game of poker, and they were in any way misled or injured by proof that the certificate was stolen from plaintiff’s pocket, this could, at most, have been but a variance between the pleading and the proof which defendants could only take advantage of as provided bv the statute and did not amount to a failure of proof.
¶3*647The issue between the parties on the facts • was whether the certificates were stolen from plaintiff’s pocket,- as plaintiff’s testimony tended to prove, or whether Keller paid cash for them as testified to by him. Both certificates were kept together in plaintiff’s pocket; were both taken at the same time and in the same manner; hence, defendants could not have been misled by any technical difference in the pleading relating to the two certificates. If there was any error in that particular it was purely a technical one which did not and could not result in any injury to defendants.
¶4If the position of the majority is correct on this point in this case then if a party should sue to recover money taken from him by a robber, and should allege that the robber met him on the highway, threw him down and tied him, then took the money from his pocket, and the proof should show that instead of obtaining the money in that way the robber held him up at the point of a pistol and required him to hand the money over, this would be a failure of proof, and it would be no more ludicrous to hold in that case that the “nucleus” of the cause of action was the charge that the robber threw him down and tied him than to hold in this case, as the majority have done, that the “nucleus” of the cause of action is the charge that the property was won in a game of poker. To my mind such a position is absurd. The cause of action in either case'is obtaining the property wrongfully and to hold that a variance between the pleading and the proof as to the manner in which it was obtained is fatal in the absence of any showing that the defendants were misled, or in any way injured, is, in my opinion, in violation of the plain provisions of our statute relating to variance, sections 1846 and 1847, Revised Statutes 1909, and is giving to a bare technicality a force unwarranted, and compels the court to become an instrument to assist the wrongdoer.
¶5*648•The reversal as to the fourth count is wrong for another reason. Counts four and five both relate to the same certificate of deposit; the charge in count five is that the certificate was larcenously obtained. The instruction under which the jury found for plaintiff on the fourth count, and which is condemned by the majority opinion followed the allegation of the fifth count, but, in closing, told the jury that if they found the facts therein described to be true to return a verdict on the fourth count. This was a mere clerical error. The plaintiff, on the facts found, was entitled to a verdict on the fifth count. It has been uniformly held that ‘when two or more counts refer to the same cause of action a general verdict, without specifying which count it is based on, is good. [Clemens v. Collins, 12 Mo. 604; Brady v. Connolly et al., 52 Mo. 19; Owens v. Railroad, 58 Mo. 386; Lancaster v. Insurance Co., 92 Mo. 460, 5 S. W. 23; Nolan v. Bedford, 89 Mo. App. 172; Akers v. Ray County Savings Bank, 63 Mo. App. 316; McGuire v. Transit Co., 103 Mo. App. 479, 78 S. W. 838; Shearer & Martin v. Hill, 125 Mo. App. 375, 102 S. W. 673.]
¶6The reason of the rule is that the jury have nothing to do with the various counts. The purpose which these counts serve in a trial is to frame issues to be supported by testimony and then submitted to the jury by instructions. The court, in the instructions, tells the jury what facts must be found to be true in order to find for plaintiff or defendant as the case may be, and when the jury returns a verdict such a verdict is the finding of the jury on the issues of fact submitted to them by the instructions, and when the verdict and the instructions together show what facts the jury found, then it is the duty of the court to enter such judgment as the facts found require if there is any count in the petition that is sufficient to support it. Applying this rule to this case there can be no escape from the conclusion. that the instruction properly submitted to the jury the is*649sues of fact raised under the fifth count of the petition, and since the jury has fairly passed upon these issues the plaintiff is now entitled to the fruits of his verdict, and ought not to he deprived of it by a mere clerical error in directing the jury to return their verdict on the fourth count when it should have directed it to be returned on the. fifth count, or to be returned generally. The jury, by their verdict, found as a fact that the defendants stole the three hundred dollars certificate just as they found that they had stolen the five hundred dollars certificate. If the fourth count did not warrant the submission of that issue to the jury the fifth count did, and had the instruction merely directed a verdict for plaintiff as to the three hundred dollars certificate upon the finding of the facts in his favor, and said nothing as to which count in the petition it was to be based upon, there can be no question that it would be good under the authorities above cited, and I can see no distinction between omitting all reference to counts by number and inserting the-wrong number when only one issue of fact is to be determined and no injury results from the error.
¶7The sole duty of the jury is to pass upon the issues of fact, and the sole purpose of the instructions is to define to the jury what issues of fact they are to pass upon, and to give them such information as will guide them to a correct conclusion upon those issues. When this has been done, and a conclusion of the jury upon the issues of fact has been correctly reached, and this is disclosed by their verdict, then both the instructions and the verdict have served their purpose. The entering of the proper judgment is a duty devolving npon the court. In the performance of that duty the court should look to the instructions and the verdict to ascertain what facts have been found and when that, is determined then the duty to enter such judgment as the facts found require, under the pleadings, is imperative, and any technical defect, clerical error, or mis*650take, in the instructions that could, not, and did not, affect the jury in passing upon issues of fact should be disregarded. Any statement in the verdict beyond a proper finding of the facts should be regarded as surplusage, and the proper judgment entered upon the real finding. [Ranney v. Bader, 48 Mo. 539; State ex rel. Webster v. Knight, 46 Mo. 83; Hancock v. Buckley, 18 Mo. App. 459; Gurley et al. v. O’Dwyer, 61 Mo. App. 348; Mueller v. St. Louis Hospital Association, 73 Mo. 242; Buttron v. Bidell, 228 Mo. 622.] What difference can it make whether the surplusage in the verdict was placed there by direction of the court or was placed there by the jury of their own initiative?
¶8Under the opinion of the majority a retrial may be had on the same pleadings and the same evidence and the same instructions, except that the word fourth should, be erased in the instruction and the word fifth inserted, and then if the same verdict is returned it will stand. To send this case back for a new trial for such a reason is to my mind judicial folly. Cases should not be reversed though error be committed unless such error operated'to the prejudice of appellant on the trial of the case upon its merits.- [Statute 1909, sec. 2082; School District v. Holmes, 53 Mo. App. 487; Bradford v. Floyd, 80 Mo. 207, 209; Boggess v. Street Railway, 118 Mo. 328, 23 S. W. 159; Gardner v. Railroad, 135 Mo. 90, 100, 36 S. W. 214; Cartwright v. Culver, 74 Mo. 129; Foster v. The Railroad, 115 Mo. 165, 21 S. W. 916.] The writer of the majority opinion has not noticed this point because the attorney for the defendant in error has not called our attention to it in his brief. If the point were being made by plaintiff in error we could well refuse to consider it if the record should show that the trial court’s attention was not called to it, but the position that an appellate court will not consider a point fairly appearing upon the record in that court, merely because counsel has overlooked it in his brief cannot be justified from any point of view. The books are full *651of cases affirmed or reversed upon points in the record bnt not mentioned in the briefs. The business of the courts is to administer justice between litigants and not to sit as mere arbiters in a technical legal battle between lawyérs.
¶9The trial court seems to have taken the view that it was immaterial as to which count was mentioned in the verdict of the jury for a judgment was entered for the total amount found by the jury as to both certificates of deposit.
¶10It cannot be said in this case that any error that may have been committed operated to the prejudice of the plaintiffs in error upon the merits of their case. The issues of fact were, in my judgment, fairly submitted to the jury and to reverse that part of this judgment upon a bare technicality, as is done by the opinion of the majority, is in my judgment in violation of section 2082, Revised Statutes 1909, which forbids us to reverse a case unless it appears that error was- committed which materially affected the merits of the action, and is also in direct conflict with Cartwright v. Culver, 74 Mo. 179, where, in commenting upon the policy of reversing a case and sending it back for a new trial where the error worked no substantial injury this language was used: “If the verdict and judgment were in every other respect warranted and the cause were for such an error as is here complained of remanded what substantial benefit could the defendant have derived from a reversal of the judgment? .To reverse a judgment for such an error would be to disregard section 3775 of the statute which reads as follows:
“ ‘The Supreme Court shall not reverse a judgment of any court unless it shall believe that error was committed by such court against the appellant, or plaintiff in error, and materially affecting the merits of the action.’ ”
¶11And also in direct conflict with Foster v. Railroad, •supra, wherein it is said; “Error cannot generally be *652predicated on tbe action of the trial judge in calling for a finding by instruction upon some immaterial fact where the substantial facts essential to plaintiff’s cause are duly submitted and found. Such an error should be disregarded when (as here) it plainly appears to have had no prejudicial bearing upon the substantial rights of the adverse party upon the merits of the case.”
¶12For the reasons above cited I request that this case be certified to the Supreme Court.