DeGenhart v. Schmidt

• Decision Date: 22 April 1879
• Citation: 7 Mo.App. 117
• Parties: FREDERICK W. DEGENHART, Defendant in Error, v. CHARLES C. SCHMIDT, Plaintiff in Error.
• Court: Missouri Court of Appeals

7 Mo.App. 117

FREDERICK W. DEGENHART, Defendant in Error,

v.CHARLES C. SCHMIDT, Plaintiff in Error.

St. Louis Court of Appeals, Missouri.

Apr. 22, 1879.

1. As to matters wherein she acted as agent, a wife's testimony for her husband is competent.

2. The statements of one in possession of personal property when delivering it to another is competent as part of the res gestæ.

3. In an action for malicious prosecution, specific acts of dishonesty on the plaintiff's part, being new matter, cannot be shown unless specially pleaded.

4. Mitigating circumstances are new matter, and must be pleaded.

ERROR to St. Louis Circuit Court.

Affirmed.

C. M. WHITNEY, for plaintiff in error: Information which came to the defendant before causing the plaintiff's arrest, whether true or false, was competent and material evidence.--1 Greenl. on Ev., sect. 101; Barron v. Mason, 31 Vt. 189. The defendant should have been permitted to state fully what he told his counsel when seeking advice.-- Sharpe v. Johnston, 59 Mo. 577; Hill v. Palm, 38 Mo. 13. The question is not as to the plaintiff's guilt, but whether the defendant had probable cause to believe him guilty.-- Brennan v. Tracy, 2 Mo. App. 540.

A. M. SULLIVAN, for defendant in error: The wife was a competent witness.-- Chesley v. Chesley, 54 Mo. 347; Colt v. Ladue, 54 Mo. 486; Summer v. Saunders, 51 Mo. 92. Separate and independent acts could not be shown under a general denial.--Sess. Acts 1875, p. 106; Stoddard v. Onondaga, 12 Barb. 576; Northup v. Insurance Co., 47 Mo. 435; Scheer v. Keown, 34 Wis. 349; Miller v. Foley, 28 Barb. 630.

BAKEWELL, J., delivered the opinion of the court.

This is an action for malicious prosecution. The answer was a general denial. There was a verdict and judgment for plaintiff, and the cause is brought here by writ of error.

The plaintiff introduced testimony tending to prove all the material allegations of the petition. Among the witnesses introduced by the plaintiff on his own behalf was his wife. The defendant objected, on the ground that she was the wife of the plaintiff. The objection was overruled, on the ground that she might properly testify as to matters wherein she had acted as agent of her husband. The prosecution grew out of the fact that the plaintiff had borrowed $100 of the defendant, falsely alleging, as the defendant contends, that he owned, at the time, real estate in his own right, which he really owned as the naked trustee of his wife. The plaintiff had already testified that he sent his wife for the money he borrowed of the defendant. As to this matter wherein she acted as agent her testimony was competent, and there was no error in this ruling. Chesley v. Chesley, 54 Mo. 347.

Mrs. Degenhart then testified that she went to the defendant's house to get the money; that no one was there but the defendant's wife, who had the money, and said, “Schmidt left that for you, and there is a note he left for you to sign.” This testimony was objected to by the defendant, on the ground that no authority had been shown of Mrs. Schmidt to speak for her husband, and that he was not present. The statement was competent as part of the res gestæ. The statements of one in possession of personal property, when delivering it to another, are admissible in evidence as explanatory of the transaction. Colt v. La Due 54 Mo. 486. The fact shown aliunde, that, on account of the borrowing of this $100 which the plaintiff testified he received through the agency of his wife, Schmidt caused the plaintiff to be arrested for having obtained this money from him on false pretences, tended to show that Schmidt's wife, if she handed over the money, did so as the agent of her husband.

The defendant testified that one Dean told him that the plaintiff was a bad character, and had been arrested for dealing without a government license; that his suspicions were thus aroused before the arrest; that he learned other facts which made him think he had been defrauded. The defendant offered to show that one Dean had told him that Degenhart boasted of having got $100 out of him, and that he did not intend to pay a cent; that before causing the arrest of Degenhart, Schmidt learned from certain parties that, about the time he had lent the $100, Degenhart had obtained money from them on the pretence that he owned the Division Street property. The defendant offered to show that he told his lawyer, when consulting about the proposed prosecution, that a certain grocer and a wagon-maker had told him they had been defrauded by Degenhart's pretence to them that he owned the Division Street property. The defendant introduced the grocer and wagon-maker, and offered to prove by them that the plaintiff had got goods from them on the representation that he owned the Division Street property. All this testimony was excluded, on the objection of the plaintiff.

We think that the court committed no error in excluding this testimony. The facts were material, and would have been competent had they been admissible under the pleadings. The plaintiff in an action of malicious prosecution must prove that the arrest was without probable cause. He makes out his prima facie case when he shows a discharge on...