21 Mo.App. 298 (Mo.App. 1886), Waddle v. McWilliams

• Citation: 21 Mo.App. 298
• Opinion Judge: ELLISON, J.
• Party Name: GEORGE F. WADDLE, Appellant, v. JAMES M. MCWILLIAMS, ADMINISTRATOR, ETC., Respondent.
• Attorney: RAMEY & BROWN, for the appellant. CASTEEL & HAYNES, for the respondent.
• Judge Panel: Philips, P. J., concurs; Hall, J., absent.
• Case Date: March 22, 1886
• Court: Court of Appeals of Missouri

Page 298

21 Mo.App. 298 (Mo.App. 1886)

GEORGE F. WADDLE, Appellant,

v.

JAMES M. MCWILLIAMS, ADMINISTRATOR, ETC., Respondent.

Court of Appeals of Missouri, Kansas City.

March 22, 1886

APPEAL from DeKalb Circuit Court, HON. THOMAS E. TURNEY, Judge.

Reversed and remanded.

The case is stated in the opinion.

RAMEY & BROWN, for the appellant.

I. Mrs. Fowler was not competent to testify to any portion of the conversation between McWilliams and her husband. Holman v. Bachus, 73 Mo. 49.

CASTEEL & HAYNES, for the respondent.

I. Granting that the testimony of Mrs. Fowler was improperly admitted, yet, if it was not a prejudicial error against appellant, it should not work a reversal of the case. Anderson v. Schockler, 82 Mo. 250; Garesche v. College, 76 Mo. 332; Carpenter v. Rynders, 52 Mo. 278.

II. The evidence of Mrs. Fowler, even if competent, in no way tends to prove a settlement of the land transaction. No defence of any payment subsequent to the making of the deed was made, nor was there any instruction asked or given to the jury embodying that defence. So that Mrs. Fowler's testimony had no bearing on the case whatever, and that being true, the judgment should be affirmed.

ELLISON, J.

This cause originated in the probate court of Dekalb county, and was appealed to the circuit court of that county. The statement set forth in substance that on December 15, 1879, appellant by one William McWilliams, his attorney in fact, sold and conveyed to respondent's intestate, about one hundred and eighty acres of land, which is fully described, for which Fowler agreed to pay eighteen hundred and fifty dollars. That he paid $1,260.50, and agreed to execute his note for the remainder, payable June 1, 1880, but died without having done so, and without having paid any part of the sum so remaining due, and asks that said amount be allowed him against Fowler's estate.

The plaintiff introduced evidence tending to prove the issues on his part. The defendant introduced the deed from plaintiff to Edward Fowler which contained an acknowledgement of the receipt of the purchase money. Defendant, then, against the objection of plaintiff, was permitted to ask Mrs. Fowler, widow of the deceased, if she ever heard a conversation between her late husband and William McWilliams (who was plaintiff's attorney in fact and who sold the land for plaintiff)...