In re Stumpf

• Decision Date: 14 June 1881
• Citation: 10 Mo.App. 474
• Parties: IN RE BISCHOFF & STUMPF; JOHN STUMPF, Appellant.
• Court: Missouri Court of Appeals

10 Mo.App. 474

IN RE BISCHOFF & STUMPF; JOHN STUMPF, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 14, 1881.

1. If the exclusion of competent testimony cannot have prejudiced the appellant, it furnishes no sufficient ground for a reversal.

2. To furnish ground for a reversal on the ground of the exclusion of testimony, it must be shown that the evidence was material as well as competent.

3. Where nothing from which the scope or character of the testimony sought to be elicited from a witness who was refused permission to testify, appears, such exclusion of the witness is not sufficient ground for a reversal.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

FINKELNBURG & RASSIEUR, for the appellant.

R. SCHULENBURG and L. GOTTSCHALK, contra.

BAKEWELL, J., delivered the opinion of the court.

John Stumpf administered upon the partnership estate of Bischoff & Stumpf, who seem to have been civil engineers. At the December term, 1879, of the Probate Court, exceptions of the administratrix of Bischoff's estate to some items of the final settlement of the partnership estate were sustained, and Stumpf appealed. On trial anew in the Circuit Court, the court sustained the second exception, which was to a charge against the estate for wages of J. George Stumpf, a minor son of appellant, and disallowed the charge altogether. The surviving partner moved for a new trial, on the ground that the second exception should have been overruled on the evidence, and that the court improperly excluded competent evidence offered for the surviving partner, especially in excluding the surviving partner from testifying. As no other grounds were alleged, we need not notice the finding of the trial court on the other exceptions.

The only point insisted upon in this court in the brief of counsel for appellant, is the exclusion of the testimony of the surviving partner.

The finding as to the second exception was, we think, fully supported by the evidence. John George Stumpf, the boy whose services are in question, testified that he was in the employ of the firm as a field hand and occasional collector, from June, 1871, to some time in June, 1875. The charge is $2,410, which seems to be at the rate of $50 a month. The boy was born in 1856. The witnesses for the administratrix testify that the services of a boy as a field hand would not be worth half that; that boys in an engineer's office can be had to work as a field hand for nothing, to learn the business; that men employed as field hands are worth, by the year or month, from $2 to $2.50 a day; that the business of Bischoff & Stumpf would not justify the employment of field hands by the year or month. Young Stumpf says that his father and Bischoff promised to pay him as hands in the city engineer's office were paid. But he worked four years without receiving anything, except a little change from his father occasionally, and Bischoff's son, a boy younger than Stumpf, says that, during most of the same period, he did the same work as young Stumpf for the firm, and received nothing but some pocket-money now and then from his father. No account was opened on the books with young Stumpf, and it is shown that nothing was said about anything due him by the firm for wages, when the books were settled up by an accountant and Stumpf, after Bischoff's...