Seligman v. Rogers

• Decision Date: 31 January 1893
• Citation: 113 Mo. 642,21 S.W. 94
• Parties: SELIGMAN et al. v. ROGERS.
• Court: Missouri Supreme Court

21 S.W. 94

113 Mo. 642

SELIGMAN et al. v. ROGERS.

Supreme Court of Missouri, Division No. 2.

January 31, 1893.

EXCLUSION OF EVIDENCE — HARMLESS ERROR — ACTION TO RECOVER LOAN — EVIDENCE — INSTRUCTIONS.

1. Though an account book of original entries, shown to have been kept in the usual course of business, is admissible in evidence in favor of the person by whom it is kept, error cannot be predicated on the exclusion of such account book, where there was other evidence to establish the facts shown by such book.

2. Where, in an action to recover money loaned to defendant for the purchase of certain shares of stock, it does not appear that defendant ever signed a memorandum or note agreeing to purchase the stock, or that the stock was ever delivered to him, or that any demand was ever made upon him for the purchase price, during the entire four years plaintiffs alleged that they "carried" the stock, evidence is admissible that, during this period, defendant, a business man, and solvent, had a large bank credit, as a circumstance which the jury might consider in determining whether or not there was a loan.

3. In such case evidence is competent as to the market value of the stock during this period.

4. In an action against an executor to recover money loaned to his decedent, it is competent to permit a witness, a son of the decedent, to testify that it was his father's habit to keep a copy of all letters received, and that, in an examination of these letters by the witness, nothing could be found relating to the alleged loan, as a circumstance tending to show that no demand was ever made upon decedent.

5. Where, in an action on an account, the evidence is contradictory, error cannot be predicated on a charge by the court that, if the jury believed that any witness had willfully sworn falsely to any material fact, they might disregard his entire testimony.

6. Where, in an action to recover money loaned to a decedent for the purchase of certain stock, it does not appear that the stock was ever delivered to decedent, or that any demand was ever made on him for the purchase price, error cannot be predicated on an instruction by the court that the jury might find for defendant, if they believed that plaintiffs had abandoned and canceled the agreement by which decedent was to take the stock.

Appeal from St. Louis circuit court; Daniel Dillon, Judge.

Action by J. & W. Seligman & Co. against Mary S. Rogers, executrix of the estate of C. W. Rogers, deceased. From a judgment for defendant, plaintiffs appeal. Affirmed.

John O'Day and E. W. Banister, for appellants. Boyle, Adams & McGeighan, for respondent.

GANTT, P. J.

This suit originated in the probate court of the city of St. Louis, in December, 1887. It is founded upon the following demand, exhibited against the estate of C. W. Rogers, deceased:

                        "New York, June 1st, 1883
                

"Mr. C. W. Rogers in account with J. & W. Seligman & Co., 1883.

                June 1st. To 1st installment of subscription
                  June 1st, 1,000 shares Atlantic
                  and Pacific stock .............................. $10,000 00
                June 30th. To 2nd installment of subscription
                  1,000 shares Atlantic and
                  Pacific stock ..................................   6,000 00
                                                                   __________
                                                                   $16,000 00
                

J. & W. Seligman & Co., by Atty."

Judgment was rendered for the plaintiffs in the probate court, without interest. Both sides appealed to the circuit court of St. Louis. It was there tried before a jury. After the jury was impaneled, the defendant, through her counsel, raised the question that this account did not state a cause of action — First, that if it stated a cause of action for stock sold by plaintiffs to the decedent, of which plaintiffs were the owners, then the sale was void, under the statute of frauds; and, second, that if it was intended to offer evidence that plaintiffs had loaned the money to pay for the stock for the use of decedent, then the account was not sufficient to authorize evidence of money loaned. Thereupon the plaintiffs stated they did not expect to show a sale of their own stock to deceased, Mr. Rogers, but they would show that they advanced $16,000 for him to pay for 1,000 shares of Atlantic & Pacific Railroad stock, at his request. Upon this statement, defendant objected to any evidence, on the ground that the account filed did not state a case for money advanced to the use of or loaned to C. W. Rogers. The circuit court overruled the objection, and defendant excepted. The plaintiffs offered evidence tending to prove that they advanced $16,000 for C. W. Rogers to pay for 1,000 shares of Atlantic & Pacific Railroad stock; that he was present in their office in New York, and one of the firm said to him, in the presence of witness Kavanaugh, that they had assigned 1,000 shares of syndicate stock, and would carry it for him, and that he assented to it.

1. The first assignment of error on the part of the plaintiffs is that the court below erred in not setting aside the verdict of the jury, and rendered judgment for plaintiffs. This is based upon the claim that there is no evidence whatever upon which the verdict for the defendant can stand. In this we cannot agree with the learned counsel. The defendant was entitled to a jury trial. The burden of proof was on the plaintiffs, and the defendant was entitled to have the jury pass upon the credibility of plaintiffs' witnesses. The courts may grant new trials when they are satisfied the jury have ignored the evidence, but it is not their province to usurp the function of another jury. This point cannot be sustained.

2. The plaintiffs offered the account books of the Atlantic & Pacific Railroad Stock Syndicate, and of J. & W. Seligman & Co., to show certain entries therein, — the first to show that C. W. Rogers was a member of the syndicate, and the firm books to show that they had charged Mr. Rogers with the $16,000, in due course of business. The trial court excluded the books, on the ground that, Capt. Rogers being dead, plaintiffs would not be allowed to testify for themselves by their books. It has very recently been decided by division No. 1 of this court, in Milling Co. v. Walsh, 18 S. W. Rep. 904, that an account book of original entries, fair on its face, and shown to have been kept in the usual course of business, is admissible in evidence, even in favor of the person by whom it is kept. Judge Black, in that case, reviewed the authorities in this state, and we concur in the conclusion he reached; and we think the books offered were competent, but it does not necessarily follow that this case should be reversed on that account. On the trial, Henry E. Kavanaugh was sworn on behalf of the plaintiffs, and testified that he was a clerk in the banking house of J. & W. Seligman & Co.; that he knew Capt. C. W. Rogers 8 or 10 years prior to his death; that he (Rogers) was on intimate terms with said banking house; he was general manager of the St. Louis & San Francisco Railroad; that the New York office of said railroad was in the same building with the bank. Jesse Seligman, one of the firm, was also a director in the Atlantic & Pacific Railroad Company. On page 32 of the printed record, Kavanaugh testified, without objection, that he was present when Mr Seligman said to Capt. Rogers he would put him down for 1,000 shares, and directed him (witness) to so enter it on the books. He was asked if he made the entries himself, and he answered he did, in pursuance of Mr. Seligman's instructions. He was then asked: "Have you the books here with you, — the original books? Answer. I have the original book entry; yes, sir. [The witness produced a book.] Q. What book is this before you? A. It is the Atlantic & Pacific Stock Syndicate book, — the account book. Q. Were the entries in it made by you at the time? A. Yes, sir. Q. What appears by that book? A. Among the list of subscribers, as appears on this list, is the name of C. W. Rogers, for one thousand shares of stock. Q. Those entries are made in your handwriting, and made at the time? A. Yes, sir. Q. They were made in pursuance of instructions you received from Jesse Seligman, in the presence and hearing of C. W. Rogers? A. Yes, sir. Q. What position did you then occupy? What were your special duties? A. My special duties were taking charge of syndicate stock, — stock and bond matters in connection with the house." As to the syndicate books this evidence was admitted: "Q. What is the entry here? Read the entry to the notary against Capt. Rogers, so that we can get a copy of it. Read the entry and the heading as to him. A. `Atlantic & Pacific Railroad Company Stock Syndicate Account.' Q. What is the date of that? A. `June 1, 1883; C. W. Rogers, 1,000 shares.' Q. Was that entry made by yourself at the time? A. Yes, sir." This testimony was received without objection, and here we have the specific item charged against Capt. Rogers. Again, on pages 34, 35, 36, and 37 of the printed record, the following evidence was given and received, without objection: "Q. As clerk in charge of the stock and bonds of the stock syndicate, was it not your duty to instruct the bookkeeper, or other clerks in the banking house of J. & W. Seligman & Co. to enter up against each individual charged with this stock the amount taken by him? A. Yes, sir; it was. Q. If you gave such instructions, state if you prepared a list of the individuals interested in the syndicate with the amount to be charged in the books, and handed to the bookkeeper, from which he was to make the entry. A. Yes; I have the list here. Q. Who prepared this list? A. I did. Q. Are the items in your handwriting? A. Yes, sir. Q. Have you those lists present? A. Yes, sir. Q. Are those the lists which you gave the clerk or bookkeeper from which to make the entries? A. Yes, sir. Q. Read what the entry in that list is to Capt. Rogers. Read the heading, also. A. ...