Laumeier v. Gehner

• Decision Date: 23 May 1892
• Citation: 19 S.W. 82,110 Mo. 122
• Parties: Laumeier, Appellant, v. Gehner
• Court: Missouri Supreme Court

19 S.W. 82

110 Mo. 122

Laumeier, Appellant, v. Gehner

Supreme Court of Missouri, First Division

May 23, 1892

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

Frank M. Estes for appellant.

(1) The court erred in excluding competent evidence on behalf of plaintiff: First. Plaintiff's testimony as to what Laumeier, deceased, did with the note upon indorsing it, and the subsequent custody of the box containing it. Second. Schedule made by Laumeier, deceased, before indorsement of note in suit, of notes in his possession, including said notes. Third. Testimony as to declaration of Laumeier deceased, as to his giving notes to the plaintiff. (2) The court erred in admitting incompetent evidence offered by defendant. First. Tax returns of one Christiane Laumeier. Second. Defendant's checks given to Laumeier, deceased prior to the date and maturity of the note in suit. Third. Defendant's checks given to Laumeier, deceased, subsequent to maturity of note in suit. Fourth. Defendant's checks given to plaintiff subsequent to death of Laumeier. Fifth. Other evidence as to particular business transactions between plaintiff and defendant subsequent to death of Laumeier, and not connected with note in suit. Sixth. Testimony of defendant as to alleged transactions and conversations between himself and Laumeier, deceased, in connection with defendant's claim of payment of note in suit. Seventh. Testimony of defendant as to contents of books, papers and documents, without production or proof of inaccessibility thereof. (3) The court erred in its finding and judgment. First. Defendant's special plea of payment was not supported by the evidence. Second. Under the pleadings and the evidence plaintiff was entitled to a finding and judgment in her favor.

Kerr & Tittman for respondent.

(1) Where in an action at law the trial is had by the court without a jury, and no instructions are asked or given, there is nothing to review, and the judgment should be affirmed. Thies v. Garbe, 88 Mo. 146; Miller v. Breneke, 83 Mo. 163; Smith v. Dunklin Co., 83 Mo. 195; Weilandy v. Lemuel, 47 Mo. 322; Garrison v. Lyle, 38 Mo.App. 559; Renney v. Williams, 89 Mo. 145. The finding of the trial court as to the facts where the evidence is conflicting is binding on the appellate court. Mead v. Spalding, 94 Mo. 43; Krider v. Milner, 99 Mo. 145. And it will be presumed, in the absence of anything to the contrary in the record, that the trial court placed its finding on the correct ground. Sebree v. Patterson, 92 Mo. 451. (2) The rulings of the court below on the evidence were careful and entirely correct. By examining the defendant Gehner in relation to the transaction between himself and the deceased, H. H. Laumeier, the plaintiff waived any and all objection to his competency as a witness, and rendered him competent to testify. Tomlinson v. Ellison, 104 Mo. 105; Niccols v. Esterly, 16 Kan. 32; 13 Cent. Law. Jour., p. 342; Harper v. Parks, 63 Ga. 705; Thomas v. Thomas, 42 Ala. 120. Moreover, as the defense was completely established by other and uncontradicted evidence, the admission of the testimony of the defendant Gehner, even if found to be incompetent, would not constitute error. Julian v. Calkins, 85 Mo. 202. (3) The delivery and gift of the note to plaintiff was a question of fact, and a material issue in the case. Any inference which might be drawn in her favor from the fact that she produced the note is rebutted by the fact that she was executrix of her husband's will and administered upon his estate. The presumption is that she acquired possession as executrix. Lynch v. Benton, 12 Rob. 113; Succession of Alexander, 18 La. Ann. 337. (4) The same force and effect is to be given to the statement of the facts set out in the affidavit as the evidence of the witness, Hartmann, as if he had appeared in court and had so testified. R. S. 1889, par. 2127; Elsner v. Sup. Lodge, 98 Mo. 640; State v. Underwood, 75 Mo. 230. And, as the evidence was uncontradicted and unimpeached, it established a complete defense. (5) The passing of checks, settling of accounts and making of loans between the parties after the maturity of the note, and the delay in bringing suit on it raise the presumption of payment. Ham v. Barrett, 28 Mo. 388; Bougher v. Kimball, 30 Mo. 193; Gibson v. Hanna, 12 Mo. 165; Pickel v. Chamber of Commerce, 10 Mo.App. 191; 1 Greenleaf on Evidence [14 Ed.] pars. 44, 48.

Brace J. Barclay, J., absent.

OPINION

Brace, J.

This is an action commenced on the twenty-sixth of April, 1889, on a promissory note executed by the defendant on the twenty-eighth of April, 1879, payable twenty days after date to H. H. Laumeier or order for the sum of $ 2,500, with interest from date at the rate of ten per cent. per annum, which the plaintiff avers the said Laumeier assigned by indorsement and delivered to her.

The answer admitted the execution of the note, denied the assignment and contained the following special plea "That for many years prior to the death of said H. H. Laumeier, which occurred on the eleventh day of August, 1881, the said Laumeier and this defendant had numerous business transactions together; that said Laumeier was possessed of means which he loaned at interest and employed in the purchase of notes secured by deed of trust, and that he made such loans and purchases through the defendant; that, with a view to their investment in the purchase of a loan for a larger amount, the said H. H. Laumeier, on or about April 28, 1879, deposited with the defendant the sum of $ 2,500, in evidence of which defendant gave him...