Mississippi Valley Trust Co. v. Begley

• Decision Date: 25 August 1925
• Docket Number: 25990
• Citation: 275 S.W. 540,310 Mo. 287
• Parties: MISSISSIPPI VALLEY TRUST COMPANY, Appellant, v. GEORGE BEGLEY and EFFIE M. RUTH
• Court: Missouri Supreme Court

275 S.W. 540

310 Mo. 287

MISSISSIPPI VALLEY TRUST COMPANY, Appellant, v. GEORGE BEGLEY and EFFIE M. RUTH

No. 25990

Supreme Court of Missouri

August 25, 1925

Appeal from Butler Circuit Court; Hon. Almon Ing, Judge.

Affirmed.

T. M Pierce, Henson & Woody and Samuel H. Liberman for appellant.

(1) Hearsay evidence was inadmissible to prove the alleged threats of plaintiff. The court erred in admitting the following testimony, purely hearsay, and in many instances hearsay based upon hearsay, and conduct based upon hearsay (a) Testimony of defendant George Begley, Sr., as to statements made to him by Meredith and George Begley, Jr. concerning threats alleged to have been made to the latter by plaintiff, and testimony as to statements made by him to defendant Mrs. Ruth as to statements made to him by Meredith and George Begley, Jr. (b) Testimony of defendant Effie M. Ruth as to statements made to her by George Begley, Sr., Meredith and George Begley, Jr., concerning threats alleged to have been made to them by plaintiff and as to statements made to her by George Begley, Sr., as to statements made to him by Meredith and George Begley, Jr., concerning the alleged threats. (c) Testimony of Harry I. Ruth as to statements made in his presence by George Begley, Sr., Meredith and George Begley, Jr., concerning threats alleged to have been made by plaintiff, and as to statements of George Begley, Sr., as to statements made to him by Meredith and George Begley, Jr., concerning the alleged threats. (d) Testimony as to the effect of the hearsay statements and acts done in reliance thereon. Re Sizer, 267 S.W. 922; Connel v. Haase & Sons Fish Co., 257 S.W. 760; Atkinson v. Am. School of Osteopathy, 240 Mo. 338; State v. Hyde, 234 Mo. 200; Lindsay v. Bates, 223 Mo. 294; Gordon v. Burris, 141 Mo. 602; St. Louis v. Arnot, 94 Mo. 275; Wood v. Hicks, 36 Mo. 327; Truesdail v. Sanderson, 33 Mo. 532; Chouteau v. Searcy, 8 Mo. 733; Fuller v. Dry Goods Co., 189 Mo.App. 514; Swift & Co. v. Scott, 181 Mo.App. 1; Whimster v. Holmes, 177 Mo.App. 130; Bowman v. Mining Co., 168 Mo.App. 703; L. & N. Ry. Co. v. Murphy, 150 Ky. 176; 22 C. J. par. 175, p. 215. (2) The declarations and statements by Meredith and George Begley, Jr., to defendants and by defendants to each other, not made in the presence of plaintiff and not authorized by plaintiff were not binding on the plaintiff and were hearsay. Dunnigan v. Green, 165 Mo. 98; Fogue v. Burgess, 71 Mo. 389; O'Neill v. Crain, 67 Mo. 251; Coble v. McDaniel, 33 Mo. 363; Atkisson v. Steamboat Castle Garden, 28 Mo. 124; Gorin Bank v. Early, 260 S.W. 480; Am. Tr. Co. v. Moore, 248 S.W. 983; Hunter v. Gas Engine Co., 237 S.W. 819; Mathewson v. Larson Myers Co., 217 S.W. 609; Lorton v. Trail, 216 S.W. 54; Strother v. McFarland, 184 S.W. 483; Knapp v. Hanley, 108 Mo.App. 353; Compton v. Bunker Hill Bank, 96 Ill. 301; Green v. Scranage, 19 Iowa 461; Ely v. Insurance Co., 110 S.W. 265; Long v. Branham, 99 S.W. 271. (3) The testimony of defendants as to why they endorsed the note embodied conclusions as to the main facts in issue and invaded the province of the jury. Unrein v. Oklahoma Hide Co., 295 Mo. 353; Meredith v. Meredith, 287 Mo. 250; Wigginton v. Rule, 275 Mo. 412; Eubank v. City of Edina, 88 Mo. 650; Laytham v. Agnew, 70 Mo. 48; Shortridge v. Rafeissen, 204 Mo.App. 166; Landers v. Railroad, 134 Mo.App. 80; 22 C. J. par. 597, p. 502. (4) The petition, bond and affidavit dictated by attorneys for plaintiff to stenographer Higgins were privileged and it was prejudicial error to admit them in evidence. Tyler v. Hall, 106 Mo. 313; State v. Dawson, 90 Mo. 149; State ex rel. Douglas v. Tune, 199 Mo.App. 404; Leschen v. Brazelle, 164 Mo.App. 415; Landsberger v. Gorham, 5 Cal. 450; Neal v. Patten, 47 Ga. 73; Fire Assn. v. Fleming, 78 Ga. 733; Bingham v. Walk, 123 Ind. 164; Snow v. Gould, 74 Me. 540. (5) The blank deed signed by John T. Walton, notary, was inadmissible in evidence. Howell v. Sherwood, 242 Mo. 513; Goble v. Kansas City, 148 Mo. 470; Heffernan v. Neumond, 198 Mo.App. 667; Smart v. Kansas City, 91 Mo.App. 586. (6) The threat by plaintiff to George Begley, Jr., to bring a suit in attachment against him could not form the basis of duress. Wood v. Tel. Co., 223 Mo. 537; Dausch v. Crane, 109 Mo. 323; Claflin v. McDonough, 33 Mo. 412; Holmes v. Hill, 19 Mo. 159; Ellis v. First Natl. Bank, 260 S.W. 714; Murray Fixture Co. v. Sullivan, 115 P. 259; Miller v. Davis' Estate, 52 Colo. 485; Hart v. Strong, 183 Ill. 349; Van Alstine v. McAldon, 121 Ill.App. 27; Chambers v. Irish, 132 Iowa 319; Riney v. Doll, 225 P. 1059; Morse v. Wordsworth, 155 Mass. 233; Goos v. Goos, 57 Neb. 294; Creveling v. Saladino, 89 N.Y.S. 834; Lillienthal v. Brewing Co., 102 N.Y.S. 1051; Hart v. Walsh, 146 N.Y.S. 235.

Sam M. Phillips and Abington & Abington for respondents.

(1) The evidence of communicated threats was competent. Schultz v. Catlin, 47 N.W. 947; Price v. Bank, 128 N.W. 898; Bryant v. Levy, 52 La. Ann. 1649; Bell v. Campbell, 123 Mo. 1; Swoboda v. Nowak, 225 S.W. 1079. (a) Evidence of threats is admissible coming indirectly from third parties when such threats are connected with the party accused of duress. 4 Ency. Evidence, p. 907, note 42; State Bank v. Hutchison, 62 Kan. 9; Marks v. Crume, 16 Ky. L. Rep. 707; Olivari v. Menser, 39 Tex. 76; Schultz v. Catlin, 78 Wis. 611; Taylor v. Jaques, 106 Mass. 291. (b) Communicated threats are competent in self defense cases. State v. Birks, 199 Mo. 276; State v. Wilson, 250 Mo. 323; State v. Nelson, 166 Mo. 203; State v. Lee, 66 Mo. 167; State v. Elkins, 63 Mo. 159; State v. Davis, 284 Mo. 695; State v. Harrod, 102 Mo. 609; State v. Beckner, 194 Mo. 299; State v. Spencer, 160 Mo. 123; State v. Harris, 76 Mo. 364; State v. Greaves, 243 Mo. 540; State v. Hayden, 83 Mo. 199. Where it is claimed that defendant's acts were in selfdefense, evidence of threats made by deceased or the person assaulted, whether made to the defendant directly or to third persons, where defendant knew thereof, is admissible. State v. Beckner, 194 Mo. 281; State v. Herrod, 102 Mo. 590; State v. Hayden, 83 Mo. 198; State v. Harris, 76 Mo. 361; State v. Lee, 66 Mo. 165. (2) The court did not err in permitting defendants to testify to the intention they had in endorsing the note in question. Defendants had a right to testify that in endorsing the note they did so to avoid George Begley, Jr., being prosecuted and that it was for this reason that they signed the note, and for no other. State v. Lyle, 296 Mo. 427; Smith v. Bailey, 200 Mo.App. 627; Van Sickle v. Brown, 60 Mo. 634.

Graves, C. J. All concur, except Walker and White, JJ., absent.

OPINION

GRAVES

Plaintiff sued the defendants as indorsers on a $ 10,000 note dated November 1, 1919, which note was payable to plaintiff. The makers of the note were George Begley, Jr., and his wife Edith Ruth Begley. At the time of the execution of the note sued upon herein, the plaintiff held four notes, aggregating $ 70,000, which purported to be signed by George Begley, Jr., and his wife Edith Ruth Begley, as makers, and by George Begley and Effie M. Ruth as indorsers. It is not disputed that all the names to these four notes were forgeries, except the name of George Begley, Jr. The first to become due of these four notes was one for $ 10,000, which by its terms would have been due on November 2, 1919, or one day after the giving of the notes involved herein. The petition is not out of the ordinary for a case of this character, and therefore no further note need be taken of it. There had been some credits given on the note and such were mentioned in the petition, and the prayer asked only for the balance ($ 62,509.50) and for interest. These credits are not charged or shown to have been the result of payments made by either defendant herein.

The first part of the answer goes into details as to each of the forged notes, and avers them to have been forgeries committed by George Begley, Jr., and that the plaintiff had knowledge of this fact prior to the execution of the note in suit, and that such act of George Begley was a felony, and so known to be by plaintiff, and its agents, attorneys and representatives, at the time, and before the execution of the note in suit. All this might be denominated as matters of inducement preceding the real defense pleaded by the defendants in their answer. This defense was twofold; (1) an illegal consideration, i. e. a promise to forego the prosecution of George Begley, Jr., and (2) a plea of duress. The reply met the answer upon all new matter therein. Upon a trial had there was a verdict for the defendants, and the plaintiff has appealed. In the brief there are only thirty-eight assignments of error. The "Points and Authorities" in the brief cut the number of fighting questions down to seven. These go to as many different questions. This is a short and general outline. The evidential facts are left to the opinion, under the several contentions made in the brief.

I. The first vital question is, whether or not the threatened action to bring a civil suit by attachment (where the said suit would at least be partly based upon the commission of a felony) will suffice to sustain a plea of duress. There is ample evidence upon which the jury could find that the representatives of the plaintiff (three in number, including a vice-president, and two lawyers) did threaten said action by attachment, and had actually prepared petition, affidavit and bond for that purpose. It should be said at this point that the competency of the evidence on this threatened action in question is vigorously assailed, and this we leave for further discussion. The proposition we have in view for this paragraph of the opinion is, whether or not a threatened civil action in...