Black v. Epstein
| Decision Date | 01 April 1902 |
| Citation | 67 S.W. 736,93 Mo.App. 459 |
| Parties | M. H. BLACK, Respondent, v. SIMON EPSTEIN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
AFFIRMED.
Judgment affirmed.
Frederick A. Wind for appellant.
(1) The petition charges an agreement "in writing between the said defendant and the said I. M. Spitz and the plaintiff," and hence its execution did not have to be denied under oath in order to require evidence of its execution before its introduction in evidence. Kelly v Ihney, 143 Mo. 436. (2) The court erred in excluding testimony offered by defendant of representations made by Black that the business was prosperous, and that the note could be paid by Spitz out of the profits of the business. Cottrill v. Krum, 100 Mo. 402; Warmell v Kain, 57 Mo. 478; Bank v. Hunt, 76 Mo. 439. (3) For the same reason the court erred in excluding testimony offered to show the financial condition of the business, and reputation as to solvency.
Chester H. Krum for respondent.
The petition alleges that the appellant and one I. M. Spitz made and delivered to the plaintiff their promissory note, and that, as part of the note and evidenced thereby, it was agreed in writing between the appellant and I. M. Spitz and the respondent that the amount of the note should be paid in three payments, the first being on January 1, 1900, the second July 1, 1900, and the third January 1, 1901. The petition alleges that on the sixteenth day of January, 1900, the appellant made a payment of $ 2,000 on account of the first payment thus contracted for. The answer admits that the respondent and I. M. Spitz executed the note described in the petition. It follows from this admission that the paper, as sued on by the respondent, which was not only in part technically to be considered a note, but also in part provided for three payments, was executed by the appellant and Spitz. There was only one paper or agreement sued on and its execution was thus admitted by the answer. Hence, there was no merit in the objection to the introduction of the paper; there was no merit to the demurrer offered to the evidence at the close of respondent's case, and there is no merit in the point now made.
A judgment was recovered in the court below on the following instrument:
When the above note was offered in evidence, appellant objected to its admission on the ground that it was not the paper described in the petition, since the petition describes a note payable in three installments of twenty-five hundred dollars on the first days of January and July, 1900, and the first day of January, 1901; whereas the above instrument became fully due nineteen months after date.
It is important to notice the petition and answer in this connection. The petition contains the following averments:
"The plaintiff states that heretofore, to-wit, on the first day of May, 1899, the defendant and I. M. Spitz made and delivered to the plaintiff their promissory note (herewith filed) whereby they promised, for value received, to pay to the order of plaintiff the sum of seven thousand five hundred and fifty dollars, without defalcation or discount, with interest at the rate of six per cent from date; that, as part of said note, and the agreement evidenced thereby, it was agreed in writing between the said defendant and the said I. M. Spitz and the plaintiff that the amount of the said note together with the interest thereon, should be paid in three payments to-wit: on January 1, 1900, July 1, 1900 and January 1, 1901; that, on the sixteenth day of ...
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