Angell v. Hester

• Decision Date: 31 October 1876
• Citation: 64 Mo. 142
• Parties: M. S. ANGELL, Plaintiff in Error, v. DAVID HESTER, Defendant in Error.
• Court: Missouri Supreme Court

64 Mo. 142

M. S. ANGELL, Plaintiff in Error,

v.DAVID HESTER, Defendant in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to St. Clair Circuit Court.

Frank H. Clark, for Plaintiff in Error, cited: Stanton vs. Ryan, 41 Mo. 510; State ex rel. Townshend, Adm'r, vs. Meagher, 44 Mo. 356; Johnson vs. Quarles, 46 Mo. 423; Looker vs. Davis, 47 Mo. 140; Byrne vs. McDonald, 1 Allen, 295; Hubbard vs. Chapin, 2 Allen, 328; Granger vs. Bassett, 98 Mass. 458; Manuf. Bank vs. Schofield, 39 Vt. 590.

R. S. Emmons, for Defendant in Error.

HENRY, Judge, delivered the opinion of the court.

This was an action by plaintiff against defendant on a promissory note executed by defendant, and payable to one E. S Tyler, for the sum of two hundred and fifty dollars, and by said Tyler assigned to plaintiff.

The answer admitted the execution of the note and the assignment to plaintiffs, but alleges that before the assignment of the note to plaintiff, he made a payment thereon to Tyler of one hundred and fifty dollars.

At the March adjourned term of said court held in May, 1874, there was a trial of said cause by the court without a jury, both parties consenting, and the finding of the court was for plaintiff, allowing defendant a credit of one hundred and fifty dollars. In proper time plaintiff filed his motion for a new trial, which was overruled, and the court gave judgment in accordance with its finding, from which plaintiff has appealed to this court.

It was proven on the trial that Tyler, the payee of the note, was dead. Defendant offered himself as a witness to prove the alleged payment. Plaintiff objected to his testifying, on the ground that he was incompetent as a witness; but the court overruled the objection and permitted him to testify, and his evidence established the payment.

The statute provides that, “no person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility; provided that in actions where one of the original parties to the contract, or cause of action in issue and on trial, is dead, or is shown to the court to be insane, the other party shall not be admitted to testify in his own favor.”

The contract sued on was the note executed by the defendant. The party with whom that contract was made was dead, and by the express terms of the statute the defendant could not be admitted to testify. The payment which he pleads was made, if at all, to Tyler, the payee, and it was in regard to that payment that he was permitted to testify.

In Looker vs. Davis (47 Mo. 145) it is said that, “the proviso relates wholly to persons who are parties to the suit, the issue arising in which is on trial, and not to others who were merely parties to the original contract. The object and purpose of the statute was undoubtedly to put the two parties to a suit upon terms of substantial equality in regard to the opportunity of giving testimony.” While this language is a little obscure, the meaning of the court is clearly expressed in the succeeding paragraph: “If the cause of action was a matter transacted with a person who has deceased, the other party to that transaction, being also a party to the suit, is not admitted as a witness at all, and cannot testify to any fact in the case.”

The case of Byron vs. McDonald (1 Allen, 293) was a suit by the indorsee against the maker of a note, the payee being dead. The defendant offered himself as a witness, but his testimony was rejected. Bigelow, C. J., said: “The testimony of the defendant was rightly rejected. The...