Bogie v. Nolan
| Decision Date | 18 June 1888 |
| Citation | 9 S.W. 14,96 Mo. 85 |
| Parties | Bogie, Appellant, v. Nolan, Administrator |
| Court | Missouri Supreme Court |
Appeal from Lafayette Circuit Court. -- Hon. J. P. Strother, Judge.
Affirmed.
Peak Yeager & Ball for appellant.
(1) Whatever defense a defendant intends relying on, he must set out in his answer. Kersey v. Garton, 77 Mo. 645; Northrup v. Mississippi, 47 Mo. 435; Bliss on Code Pleading, sec. 352. The court, therefore, committed error in refusing to give instructions numbered six, seven, eight nine and ten, as asked by plaintiff. (2) The court also erred in giving instruction number one for defendant. The instruction is erroneous in placing on plaintiff the burden of proving the consideration of the notes, and that the decedent signed them with full knowledge of the character of the instrument. This was not a case of gift, as in the case of Garvin v. Williams, 44 Mo. 465, and like cases. (3) There was no evidence that plaintiff was a trusted adviser of the decedent, and for this reason and others instruction number five, given by the court of its own motion, was erroneous. (4) It was error for the court to admit in evidence the inventory filed by the administrator purporting to show the amount of property which the decedent had on hand at the date of her death. Coombs v. Coombs, 86 Mo. 176. (5) The evidence of the witnesses Green and Baird, that they knew the decedent intimately and that they had never heard of her borrowing any money from plaintiff, was inadmissible. Society v. East Sangatuck, 53 Conn. 478; Bates v. Forcht, 89 Mo. 121. (6) Plaintiff's deposition was improperly read in evidence. Priest v. Way, 87 Mo. 16. (6) The court improperly excluded evidence offered by plaintiff tending to prove that he had money and was financially able to make the loans specified in the notes.
R. H. Field for respondent.
(1) Under a general denial in an action on a note, fraud, unsoundness of mind of the maker, and want of valuable consideration may be shown. Corby v. Weddle, 57 Mo. 452; Cavender v. Waddingham, 2 Mo.App. 551; Evans v. Williams, 60 Barb. 346; Butler v. Edgerton, 15 Ind. 15; Goodenough v. Huff, 53 Vt. 482. The petition, however, in this case averred that the notes were executed for a valuable consideration and cured any defect if it existed in the answer in that particular. Hughes v. Carson, 90 Mo. 399; Nixon v. Beard, 9 West. Rep. 658. The objection was still further waived by failure to object to the evidence on the point. Ziekel v. Douglass, 88 Mo. 382. (2) The burden of proof was upon the plaintiff to show that the notes in question were given for an adequate consideration, and that equity and perfect fairness characterized each transaction, because of the relationship of physician and patient, and confidence existing between him and Mrs. Dowling. Cadwallader v. West, 48 Mo. 494; Street v. Goss, 62 Mo. 221; Garvin v. Williams, 50 Mo. 211. (3) And plaintiff's exception to the refusal of his instructions, numbers six, seven, eight, nine and ten, is ineffectual unless each and every one of them should have been given by the court, because the record shows that he excepted to the refusal of all of them in a lump and not separately. Sumner v. Blair, 9 Kas. 521; Bedwell v. Bedwell, 77 Ala. 587; Kilpatrick v. County, 66 Ala. 422; Magee v. Badger, 34 N.Y. 247. (4) The court did not admit the inventory of the personal estate of Mrs. Dowling as independent evidence, nor as an inventory at all as alleged by counsel for appellant in point four of their brief, but only as a part of the testimony of George N. Nolan, administrator, while on the witnessstand, and in so doing the court did not err. (5) The court did not err in admitting the testimony of Baird and Green. Kinchloe v. Priest, 89 Mo. 241; Smalley v. Hale, 37 Mo. 102; Blue v. Penniston, 27 Mo. 274. (6) The depositions of appellant were rightly read in evidence. No specific grounds of objection were made and his presence in court constituted no objection to them as evidence of his admissions and declarations. The decision in Priest v. Way, 87 Mo. 16, should be overruled. (7) The court did not err in excluding the testimony of French and Holman, because the simple fact of plaintiff's keeping a pocket-book in their vault for several years before the date of the alleged loans, did not rebut any evidence offered by defendant, and was an immaterial fact and might have drawn away the minds of the jurors from the real issue in the case. Ritter v. Bank, 87 Mo. 574.
Brace, J. Ray, J., absent. Norton, C. J., who adheres to the ruling in Priest v. Way, supra, concurs in the opinion in other respects.
In February, 1883, Mrs. Mary or May Dowling died in Kansas City possessed of real estate and personal property of the value of about twenty-five thousand dollars. The plaintiff, a practicing physician in that city, for several years prior and up to her death was her regular physician and medical attendant. Soon after her death the defendant, who was public administrator of Jackson county, took charge of her estate for administration, and thereafter, at the May term, 1883, of the probate court of said county, the plaintiff presented to said court, and procured to be allowed as demands against said estate, three promissory notes purporting to have been executed to him by the said Mary Dowling, one dated July 7, 1882, payable one year after date, for twelve thousand dollars, with twelve per cent. interest, one dated September 5, 1882, payable one year after date, for nine thousand dollars, with ten per cent. interest, and one dated January 10, 1883, payable one day after date, for fourteen hundred dollars, with ten per cent. interest.
The orders allowing these notes as demands against said estate were afterwards set aside by the probate court, and the plaintiff instituted this suit on said notes against defendant, as administrator of the estate of the said Mary Dowling, in the circuit court of Jackson county, at Kansas City, from which a change of venue was taken to the circuit court of Lafayette county, where a trial was had, resulting in a verdict and judgment for defendant, from which plaintiff appeals. A reversal of the judgment is urged, on the ground that the trial court admitted illegal evidence for the defendant, rejected legal and competent evidence for the plaintiff, gave improper instructions for the defendant, and refused proper instructions for the plaintiff.
The petition contained three counts, one on each of said promissory notes, and each containing the allegation that on the date thereof the said Mary Dowling, for value received, executed and delivered the promissory note therein counted upon. The answer of the defendant contained a general denial of each and every allegation of the petition, or any knowledge or information thereof sufficient to form a belief, and an averment, in substance, that, from about the year 1875 to the time of her death, the plaintiff was the regular physician and medical attendant of the said Mary Dowling, and during all that period of time had the complete confidence and trust of the said Dowling in all things, and prayed the court to require of the plaintiff full proof that the said Mary Dowling executed said notes, and the consideration upon which they were based, if any. The reply admitted that plaintiff was the regular physician and medical attendant of Mary Dowling during the period of time specified in defendant's answer and denied the other allegations of the answer.
I. In vacation before the trial, the defendant took the deposition of the plaintiff and filed it in the cause, and the plaintiff on the trial, when putting in his evidence in chief, offered to read his deposition, to which defendant objected, and the court sustained his objection, and refused to permit it to be then read. When the defendant came to put in his evidence, he offered to read the same deposition as statements and admissions of the plaintiff, to which plaintiff objected, "the said Bogie being then present in court." The court overruled the objection and permitted the same to be read as statements and admissions of the said Bogie. On the authority of Priest v. Way, 87 Mo. 16, it is contended that the court committed error in permitting the declarations of the plaintiff as contained in the deposition to be read. The parenthetical statement in the bill, "the said Bogie being then present in court," cannot be considered as an assignment of that particular ground as an objection to the admissibility of the evidence, and the objection being general only, for that reason, under the repeated rulings of this court, the plaintiff cannot insist upon having the action of the trial court in this particular reviewed. But as the question sought to be raised can be gathered from the record without difficulty, and as the ruling upon it in the above case by a divided court was different from that in Pomeroy v. Benton, 77 Mo. 64, it is proper that another expression of the view of this court upon the question should be given.
In the case last mentioned, the question was elaborately discussed on principle and authority by Sherwood, J., in a dissenting opinion in which Black, J., concurred. After a careful review of the authorities and due consideration of the argument pro and con., the writer hereof has arrived at the same conclusion reached by the learned judge in that opinion, i. e., that the declarations of a party to a suit, made in a deposition taken by his adversary, may be read in evidence against him on the trial, in the same suit in which such deposition was taken, whether he be present or absent; he is none the less a party because his adversary has called him as a witness that the legislature, in conferring upon a party the right...
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