¶1The opinion of the court was delivered by
¶2In the course of the trial of this cause at the Circuit, it became necessary to ascertain the terms of an agreement between Freeman and Bartlett, under which agreement Bartlett had entered and occupied a hotel belonging to Freeman. The materiality of this inquiry it is unneessary to state in detail, as it is sufficient to say that there was a contest as to which of two statements of the terms of that agreement was correct. Freeman contended that the agreement was completely expressed in a certain writing, and Bartlett insisted that a part of the agreement was verbal and that the writing did not express the whole of their completed contract. Freeman’s testimony was in substance that in the course of the negotiation concerning the terms upon which Bartlett should occupy the hotel, a certain paper writing was drawn by himself and handed to Bartlett, who interlined and returned it to Freeman; that this paper so interlined by Bartlett was understood by both parties to contain the terms of the contract between them, and that it was understood that Bartlett should sign it when he came to Freeman’s office in Camden.
¶3Bartlett in his testimony admitted that he had received such a paper ,from the hands of Freeman, and had interlined it, but *35denied that this writing contained the entire agreement under which he went into the occupancy of Freeman’s hotel. He insisted that there were terms agreed upon which did not appear therein, and it was upon these latter terms that he grounded his case against Freeman.
¶4In the course of the trial this paper writing was offered in evidence by the attorney of Freeman, and it was by the court excluded. To this ruling an exception was sealed. The primary question arising upon the assignment upon this exception is whether, in the determination of the question as to which of these conflicting statements is accurate, the paper itself was relevant and material evidence.
¶5Although this paper was not signed by the parties, and so did not rise to the dignity of a written contract, yet I think it was admissible in evidence. It was a transaction constituting part of the negotiation out of which the contract emerged. It was a part of the res gestee, and as such was, I think, relevant. This was the view in which a similar writing was regarded, under like circumstances, by the Hew York state Court of Appeals. Lathrop v. Bramhall, 64 N. Y. 365.
¶6But while it seems to me that this paper could have gone to the jury, yet it appears entirely clear that it could not have •afforded any aid to the plaintiff in error. This conclusion follows from the fact that all that the presence of the paper would have proven was not questioned at the trial. The paper would have exhibited its contents and what portion was interlined by Bartlett. But all this was stated by Mr. Freeman with the paper before him as a memorandum. His statement was assumed to be accurate. Indeed, there was no room for mistake.
¶7Upon the point contested, namely, whether this writing contained the entire agreement between the parties, it is obvious that the writing itself would have thrown no additional light. The rule is well settled that when the plaintiff in error has sustained no injury he cannot rely upon a technical mistake on the pai’t of the court as a ground for reversing the judgment. Ayres v. Van Lieu, 2 South. 765; Smith v. Ruecastle, 2 Halst. 357; Rodenbough v. Rosebury, 4 Zab. 491.