Erhart v. Dietrich

• Decision Date: 07 December 1893
• Parties: Erhart, Administrator, v. Dietrich, Appellant
• Court: Missouri Supreme Court

24 S.W. 188

118 Mo. 418

Erhart, Administrator, v. Dietrich, Appellant

Supreme Court of Missouri, Second Division

December 7, 1893

Appeal from Scotland Circuit Court. -- Hon. B. E. Turner, Judge.

Affirmed.

E Scofield and McKee & Jayne for appellant.

(1) The court erred in setting aside the verdict of the jury and granting respondent a new trial; for instructions numbered 1 2 and 3, given on motion of appellant, properly declared the law under the pleadings and evidence in this cause. (2) Instruction numbered 1, given on motion of defendant correctly declared the the law; possession of a promissory note, by maker, after due, is presumptive evidence of payment. Lawson v. Gudgel, 45 Mo. 480; Hill v. Gayle, 1 Ala. 275; Smith v. Harper, 5 Cal. 329; 1 Greenleaf on Evidence [12 Ed.], sec. 38, p. 43; 19 Pickering (Mass.), 221 to 227; Boring v. Clark, 15 Atlantic Reporter, 853; Abbott's Trial Evidence, pp. 809 and 816; Lawson on Presumptive Evidence, pp. 344, 347, 348, 349, and 350. (3) Instruction numbered 2, given on motion of defendant, correctly declared the law: Note produced in evidence with the name of payor cut therefrom, raises presumption that same had been paid. Abbott's Trial Evidence, p. 408, sec. 35; Grey v. Grey, 47 N.Y. 552. Instruction numbered 3, given on motion of appellant, correctly declares the law. All credits appearing on note, given in evidence, should be taken and considered as correct until overcome by evidence. 1 Greenleaf on Evidence, secs. 121, 712; Carter v. Carter, 44 Mo. 195; Smith v. Terry, 69 Mo. 142; Ham v. Barret, 28 Mo. 288; Lawson on Presumptive Evidence [1 Ed.], 353. Though instructions numbered 1, 2 and 3, given on motion of defendant, had been excluded from the jury, the same declarations of law they contained would have yet been to the jury, in the remaining instructions given in the cause. (4) The jury, being the sole judges of the credibility of the witnesses and the weight of the evidence, have said by their verdict in this cause that appellant did not obtain the possession of the note and mortgage in controversy fraudulently.

John D. Smoot and Mudd & Wagner for respondents.

(1) There is no presumption of payment arising under the circumstances presented in this cause. Lawson on Presumptive Evidence, p. 355, rule 76; Grey v. Grey, 47 N.Y. 552; Kenny v. Public Administrator, 2 Bradf. 319. (2) The presumption does not arise where the debtor had the means of obtaining possession of or of canceling the obligation otherwise than by payment. See authorities cited above. (3) The court erred in instructing the jury that the credits on the notes were presumed to be true.

OPINION

Gantt, P. J.

This is an action by the administrator of John Dietrich, deceased, and Wm. Gerth, the trustee in a deed of trust given to said Dietrich by his son, August Dietrich, the defendant, to secure a certain note for $ 800, of date December 28, 1886, and bearing 8 per cent. interest. John Dietrich, Sr., died in the winter of 1890, at the age of 87 years. He was, as his name indicates, a German. He never acquired sufficient knowledge of the English language to speak it. He was a widower for several years prior to his death. He left surviving him four children, two sons, John and the defendant, August, and two daughters, Mrs. Long, and Mrs. Hildebrant, all married and with families.

The execution and delivery of the note and deed of trust for $ 800 are admitted by defendant. He pleaded payment, and surrender of the note, and a set-off, for various goods and wares furnished his father by him, and for services rendered in nursing and caring for his father, and money loaned, to the amount of $ 1,003, setting out the items. To which plaintiff replied, denying all the allegations of new matter, and especially denies the payment of the note, and the surrender of the note and deed of trust, but avers the facts to be that John Dietrich, Sr., the payee of said note, "at the time when defendant obtained possession of said note and trust deed, long before and ever since until his death, was old, infirm and weak, in both mind, and body, was incapable of attending to his business or transacting the ordinary affairs of life, and was wholly incompetent to make a contract, and the defendant knowing said facts fraudulently obtained possession of said note and trust deed without paying any consideration therefor, and without any consideration whatever and has ever since fraudulently held possession of said note and trust deed." Plaintiff further denies each and every item of defendant's set-off.

From the evidence, we glean that the old gentleman lived by himself, in a little house in Etna, doing his own cooking and work, when well, and, when feeble, employing Mr. Kepfer's wife to cook and wash for him. He lived alone in this manner about five years, until the summer of 1889, when his mind became diseased, and his son, the defendant, was sent for, and he took him to his house, where he lived until his death in 1890, save for a period of ten weeks, which he spent at the house of his son-in-law, Hildebrant. The testimony greatly preponderates to the effect that the old man was exceedingly feeble, both in mind and body, during the time he lived at his son's, the defendant. All his effects, including the note and mortgage, were taken to defendant's house, and after the death of the old man the note and mortgage were found in defendant's possession with defendant's name cut off of the note. The defendant attended to his father's business after he came to his house. He paid Hildebrant for his care of him for ten weeks. He gave in his tax list including this note to the assessor.

Defendant does not claim that he was entitled to any credits on the note when his father came to him in the summer of 1889. The old gentleman had no stock of any kind and did not and could not transact any business. The note had a credit of $ 400 on it, purporting to have been made in 1890; this credit was not shown to have been in the old man's hand-writing or by his direction. Mr. Ladd, the county assessor, testified that the deceased gave in the $ 800 note for the years 1887, 1888 and 1889. In 1890, the defendant gave the note in as $ 300.

Defendant offered evidence to show the value of his services by the week in taking care of his father, and plaintiff offered various witnesses, most of them relatives, to prove that defendant admitted to them after his father's death, that he owed him the $ 800 note.

Defendant refused to pay Hildebrant $ 2 a week for taking care of his father in 1890 on the ground that it was an excessive charge. The administrator testified that when he went to make the inventory and asked defendant for the papers of deceased, defendant said that it was none of his business; that he would have nothing to do with it. No proof of payment other than by the services set up in the counterclaim was made by defendant, and there was no evidence that these were rendered with the expectation of reward, or that the amount was agreed upon, or any settlement had, prior to the old man's death, or that the old gentleman needed money for any purpose, except for support.

The court gave the following instructions, at the request of plaintiff:

"1. The court instructs the jury that, in determining what weight should be given to the credit on the back of the note and to the fact that defendant is in possession of the note in suit, the jury may take into consideration the mental capacity and condition of the deceased, the fact that he lived at defendant's house and was there at the time of his death.

"2. The jury, in passing upon the question whether said note is paid or not, have a right, and it is their duty, to take into consideration all the facts and circumstances connected with the cause, given in evidence, and the jury are the sole judges of the weight of the evidence and of the credibility of the testimony.

"3. The jury, in passing upon defendant's set-off, in order to be justified in allowing him upon any item of the set-off, must be satisfied from the evidence in the cause that the same was justly due defendant at the time of the death of John Dietrich, and the burden of proof is on defendant to show such indebtedness.

"4. Although defendant is in possession of the note and the trust deed sued upon, still, the plaintiff has the right to sue and recover upon said note, unless the jury shall believe from all the evidence that plaintiff has paid off said note."

To which defendant excepted. The court refused the following:

"5. If the jury believes from the evidence in the cause that said note of $ 800, admitted to have been given by the defendant to John Dietrich, deceased, was unpaid, and was due to John Dietrich, deceased, at the time he left Etna and went to reside with defendant, and if the jury further believe from the evidence in the cause that said John Dietrich was weak in body and mind and did not have mental capacity sufficient to make a contract; while in said condition defendant obtained possession of said note and mortgage, then said possession was wrongful and could not affect plaintiff's right to recover on said note sued upon."

To which plaintiff excepted. The court then gave the following instructions for defendant:

"1. The court instructs the jury that the possession of a promissory note by its maker after the same becomes due, is presumptive evidence of its payment. Therefore, if you believe from the evidence in the cause that the note described in the plaintiff's petition was in the possession of the defendant at the time of the bringing of this suit and after the same was due, then that is evidence that defendant has paid the same, and before the plaintiff can recover in this action he must prove by a...