Banking House of Wilcoxson & Co. v. Rood

• Decision Date: 28 January 1896
• Court: Missouri Supreme Court
• Parties: BANKING HOUSE OF WILCOXSON & CO. v. ROOD.

33 S.W. 816

132 Mo. 256

BANKING HOUSE OF WILCOXSON & CO. v. ROOD.

Supreme Court of Missouri, Division No. 1.

January 28, 1896.

WITNESS — COMPETENCY — STATUTES — EVIDENCE — CROSS-EXAMINATION.

1. Where a stockholder of a corporation did not act as its agent in negotiating a contract it has sued on, he is not an incompetent witness, as a party to the contract, within Rev. St. 1889, § 8918 (formerly Rev. St. 1879, § 4010), providing that a party in interest shall be incompetent where one of the original parties to the contract in issue is dead.

2. Where an incompetent witness is asked a direct question on cross-examination, his answer is competent against the party eliciting it.

Appeal from circuit court, Carroll county; W. W. Rucker, Judge.

Suit by Banking House of Wilcoxson & Co. against Henrietta Rood, administratrix, to recover on a promissory note made by her intestate. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Pattison & Sebree, for appellant. Hale & Son, for respondent.

MACFARLANE, J.

Plaintiff, a banking corporation, presented to the probate court for allowance against the estate of N. P. Rood, deceased, a note for $515. On appeal to the circuit court, plaintiff recovered judgment, and defendant appealed. On the trial, James M. Wilcoxson and Harrison Wilcoxson, both stockholders in the bank, — the former its cashier, and the latter its president, — were permitted to testify as witnesses. Defendant objected to their competency, on the ground that they were both interested in the result of the suit, and Rood, the other party to the note, was dead. These witnesses testified that the name signed on the note was the proper signature of deceased, and also that they saw him write it. In the opinion of the Kansas City court or appeals, to which the appeal was first taken, these witnesses were incompetent to testify to any fact, on account of their interest; but one of the judges being of the opinion that the decision is in conflict with the decision in the case of Bates v. Forcht, 89 Mo. 121, 1 S. W. 120, the appeal was certified to this court.

There can be no doubt that these witnesses would have been incompetent under the general rule at common law. The rule is correctly given in the opinion of the court of appeals, which is sustained by the authorities therein cited. In that opinion, Ellison, J., says: "At common law, whoever had a legal, direct, and certain interest in the event of a cause, however small the interest was, or an interest in the record, for the purpose of evidence, was disqualified. 1 Starkie, Ev. 23, 24; 1 Greenl. Ev. 386; Nichols, Shepard & Co. v. Jones, 32 Mo. App. 665. Stockholders in a bank have a direct and certain interest in the result of the litigation in which the bank may be engaged, and they have never been considered competent witnesses at the common law. Starkie says (page 131) that `previously to the passing of this statute [Lord Denman's act], in an action by or against a corporation or other body, the members of which were not mentioned by name on the record, a member having any private interest in the result was not competent as a witness on behalf of the body, on account of that interest.' 1 Phil. Ev. p. 39, says, `The same principles which render parties to the record incompetent when suing or sued in their individual capacities were formerly held [prior to Lord Denman's act] to apply to members of a corporation suing or sued in its corporate name.' Meighen v. Bank, 25 Pa. St. 288, and cases cited; City of Maysville v. Schultz, 3 Dana, 13; Methodist Episcopal Church v. Wood, 5 Ohio, 285; Grayble v. Turnpike-Road Co., 10 Serg. & R. 273; Bank v. Ridgely, 1 Har. & G. 408; Bank v. McWilliams, 2 J. J. Marsh. 260." A class of cases excepted out of the general rule, on the ground of convenience and necessity, "is that of agents, carriers, factors, brokers, and other servants, when offered to prove the making of contracts, the receipt or payment of money, the receipt or delivery of goods, and other acts done in the scope of their employment." 1 Greenl. Ev. § 416. Under this exception, the opinion in the Bates Case, supra, includes a cashier and teller of a bank, and holds that at common law they were competent witnesses "to charge the defendant on a promissory note, or for money lent or unpaid, or obtained from the officer without the security he should have received." It is questionable, as seen, whether the exemption would apply at common law in case the cashier was also a stockholder in the corporation, and directly interested in the result of the litigation. "But," says the court, "whatever the rule at common law as to the interest of a witness disqualifying him, it is superseded by section 4010, Rev. St. 1879 (now section 8918, Rev. St. 1889), which declares that no person shall be disqualified as a witness by reason of his interest in the event of the suit, as a party or otherwise. The rejected evidence was clearly competent under our statute, if not under the rule at common law." As the witness in the Bates Case was not only the cashier of the bank, but also a stockholder therein, it is clear that the opinion of the court of appeals is directly in conflict with that decision.

But counsel challenge the correctness of the decision in Bates v. Forcht, and claim that it is not consistent with subsequent decisions of this court. The statute declares that no person shall be disqualified as a witness in any civil suit by reason of his interest in the event of the same, as a party or otherwise: "provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead * * * the other party to such contract or cause of action shall not be admitted to testify." This court has ever undertaken to conform its decisions to the spirit, rather than to the strict letter, of this statute. Orr v. Rode, 101 Mo. 398, 13 S. W. 1066. The primary object and purpose of the law, evidently, was to remove the disabilities by which parties to the record and parties interested were at common law rendered incompetent to testify. The exception was intended to prevent the injustice that would arise...