Baker v. Stonebraker

• Decision Date: 31 October 1865
• Citation: Baker v. Stonebraker, 36 Mo. 338 (Mo. 1865)
• Parties: JOHN BAKER, Plaintiff in Error, v. JOHN STONEBRAKER et al., ADM'RS OF JOHN S. STONEBRAKER, Defendants in Error.
• Court: Missouri Supreme Court

36 Mo. 338

JOHN BAKER, Plaintiff in Error,

v.JOHN STONEBRAKER et al., ADM'RS OF JOHN S. STONEBRAKER, Defendants in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to Montgomery Circuit Court.

E. A. Lewis, for plaintiff in error.

I.The court erred in admitting evidence as to John Stonebraker's business habits and character.Such testimony is never admissible in a civil case, unless the character or habits of the party are directly in issue.No exception is allowed to this rule in suits on contract, even where it might repel an imputation of fraud.(Gough v. St. John, 16 Wend. 646, 653;Attorney General v. Bowman, 2 Bos. & Pul. 532, note a.: 1 Greenl. on Ev.§ 54;Lander v. Seaver, 32 Vt. 114, 124;Jacobs v. Duke, 1st ed.Smith, 271;Church v. Drummond, 7 Ind. 17;Jeffries v. Harris, 3 Hawks, 105;Humphries v. Humphrey, 7 Conn. 116;Anderson v. Long, 10 Serg. & R. 55;Nash v. Gilkerson, 5 Id. 352.)

II.The evidence was calculated to mislead the jury.It is not only possible, but highly probable, that it constituted the real reason for their verdict.All the “circumstances” thus standing on an equal footing, or at least nearly so, it is impossible to tell which one operated effectually to produce the verdict.And in such cases the rule is universal, that if any one of such facts or circumstances was improperly submitted to the jury, the verdict must be set aside.(Ellis v. Short, 21 Pick. 142, 145;Clark v. Vorce, 19 Wend. 232;Dresser v. Ainsworth, 9 Barb., S. C. 625;State v. Allen, 1 Hawks, 6; Anthorn v. Coit, 2 Hall, 40.)And this ability to pay is not only denied any tendency to raise a presumption of payment, but has been held even to favor the contrary presumption, especially when taken in connection with the lapse of time; for the fact of the debtor's abundant means might constitute the very reason why the creditor had no fear of losing his debt, and hence forbore to sue.The defendant's willingness to pay, as deducible from his business habits, falls within the same category, besides being inadmissible from other considerations.Hence, all this testimony in the case fails to furnish any foundation for the instruction.(Rogers v. Burnes, 27 Penn. 525;Hilton v. Scarborough, 5 Gray, 422; Fleming v. Rothwell, 5 Harring, 46;1 Phil. Ev., C. H. & E., 677.)The issuance or existence of the execution, whether returned or not, is, in the absence of a levy, entitled to no consideration, with reference to the presumption of payment; for, 1.There was in fact, no legal evidence of its existence--the mere historical statement certified by the clerk, without an exemplification of the execution itself, not being sufficient or admissible--(Cornelison v. Browning, 9 B. Monroe, 50; Drake v. Merrill, 2 Jones, Law, 368;Barry v. Rhea, 1 Overt. 345); and, 2.If it be claimed that there is sufficient proof of the loss of the execution to admit this secondary proof of its existence, then the very fact of its loss repels the presumption of payment as a legal conclusion.(Peck v. Barney, 12 Vt. 72;Peck v. Tiffany, 2 N. Y., Comst. 456;Thomas v. Cleveland, 33 Mo. 126;Blackburn v. Jackson, 26 Mo. 308;Radde v. Whitney, 4 E. D. Smith, 378.)

III.The court erred in overruling the motion for a new trial.The verdict was so palpably against the law and the weight of evidence as to justify the interference of the Supreme Court to correct the error.Ever, possible presumption of payment that could be extracted from the testimony was legally and conclusively repelled, leaving nothing to justify a verdict in favor of the party upon whom the burden of proof rested.(1 Phil. Ev. 677; Woodbury v. Taylor, 3 Jones, Law, 504;Boardman v. DeForest, 5 Conn. 1;Dagget v. Tallman, 8 Conn. 168.)

Dyer & Orrick, for defendants in error.

I.A shorter period of time than twenty years, together with additional circumstances tending to prove payment, may go to the jury and constitute a presumption of payment.(1 Phil. Ev. 677, and cases there cited;2 McCord, Ch. 435;2 Wash. C. C. 323;3 McCord, 340-41;1 Id 146-7;8 Wend. 443;7 Iowa, 224, 231;9 Serg. & Ra. 379;4 Wend 483;12 Vt. 72.)

II.The business character of John Stonebraker for accuracy or care lessness in his transactions, as disclosed by the testimony, was such a circumstance as might be considered by the jury with reference to the presumption of payment.(2 Grant'sCas. 77;1 Greenl. Ev., § 39;9 Watts, 442;4 Penn., Munf. 429;Ross v. Dailey, 1 Esp. 297;20 Texas, 706;2 Head, Tenn. 405;Fleming v. Rothwell, 5 Harr. 46, Del.;1 Phil. Ev. 612.)

III.At most, the testimony was only irrelevant, and it is the uniform rule of superior courts not to reverse for irrelevancy of testimony unless it was calculated to mislead the jury.(29 Mo., 199; 3 Texas, 493.)

HOLMES, Judge, delivered the opinion of the court.

This suit, commenced in the St. Charles Circuit Court at the June term, 1859, and transferred by change of venue to the Montgomery Circuit Court, was founded upon a record of a judgment rendered upon confession in the county court of Washington county in the State of Maryland, on the third day of February, 1840, for $1,230.75 debt, together with interest and costs, with a stay of execution for one year, in favor of George McCulloch against John Stonebraker; and it was afterwards assigned to John Baker, the plaintiff herein.

The answer set up the defense of payment.There was a trial by jury, and the defendant had a verdict.The plaintiff's motion for a new trial was overruled, and the case is brought up by writ of error.

It appeared in evidence on the part of the defendants, who had the affirmative of the issue, that, on the 26th day of February, 1841, an execution was sued out upon this judgment and placed in the hands of the sheriff, but that he never made any return thereof; that on the 20th day of April thereafter, John Stonebraker, the defendant, made an assignment of all his property, real and personal, amounting to some eighty thousand dollars, to trustees for the benefit of his creditors, “without priority or preference except as the same exists by law”; that in the fall of 1843John Stonebraker came to Missouri and settled in the county of St. Charles, bringing with him some $1,500 or $2,000 worth of property, and that he was ever afterwards prosperous in business, was worth $5,000 in 1849, had several farms and much valuable stock in 1855, of the value of $10,000 at least, and died in 1859 at the age of seventy-two, leaving an estate worth $25,000; that in respect of business habits and character he was rather “loose and reckless,” was “very communicative” and did business with a rush,” but that at any time after he came to this State he was well able to have paid this debt; and that the plaintiff's attorney in Maryland was a vigilant collector, and knew where Stonebraker resided in Missouri, and was acquainted with his circumstances and the fact that he had made a good deal of money.

On the part of the plaintiff, it appeared further that the suit had been conducted by an attorney resident at Hagerstown, in the county of Washington, State of Maryland, who had sued out the execution on this judgment and placed it in the hands of the sheriff of the county, but that he never saw it afterwards; that the trustees took charge of the property assigned and proceeded to settle up the business; that some time afterwards, the attorney made inquiry of one of the trustees, and was informed that there were sufficient claims having priority against the property assigned to exhaust the whole of the proceeds, and he did not suppose that anything would be paid on said execution; and the attorney states that no money was ever made on the same that came to his knowledge.He further stated that the sheriff had since died, and that he did not know what had become of the execution.The attorney in St. Charles testified that, after he had taken charge of the claim for collection, in 1859, he conferred with John Stonebraker on the subject, who denied that he was the man, and suggested that there was another man of that name in the State of Maryland, and that, afterwards, on being told what evidence had been obtained of his identity, he still denied that he was the man, but never intimated that he had paid the debt.

An extract from the bill of rights of the State of Maryland, showing that the people of that State were entitled to the benefit of the common law and the statutes of England existing at the time of their first emigration, and found applicable to their circumstances and to such other British statutes as had since been introduced, used and practiced in the courts of law and equity, and to all acts of Assembly in force on the first day of June 1774, except such as had expired or had been altered by subsequent legislation, was agreed to be considered as a part of the evidence.

The court gave the following instructions for the defendant:

“The jury are instructed that a less time than twenty years, together with additional circumstances tending to prove payment, may be considered by the jury as ground for a presumption of payment.”

All the instructions asked for by the plaintiff were given; they were consistent with that for the defendant, were quite favorable to the plaintiff, and need not be further noticed.

An exception was taken by the plaintiff's counsel to the admission of testimony, tending to show what were the general business habits and character of the defendant; and the witnesses were allowed to state that he was in general “loose and reckless,” doing business “with a rush.”The rule is well settled, as insisted on the part of the plaintiff, that in civil cases, where the character of the party for honesty and integrity is not put in issue by the pleadings, evidence bearing upon reputation and character of that kind is inadmissible; but such was not the nature or the object of this testimony.It concerned only the business habits of the party as one circumstance, with...