Bone v. Friday
| Citation | 167 S.W. 599,180 Mo.App. 577 |
| Parties | ROBERT L. BONE, Respondent, v. MARY E. FRIDAY, Appellant |
| Decision Date | 13 June 1914 |
| Court | Missouri Court of Appeals |
Appeal from Butler Circuit Court.--Hon. J. P. Foard, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
David W. Hill for appellant.
(1) It was admitted that William H. Friday was dead, and as he was a party to the contract made by the plaintiff Robert L. Bone the witness Robert L. Bone was incompetent to testify, and the objection to his testifying on that ground should have been sustained, and excluding his testimony, there was no evidence upon which to base plaintiff's instruction, and the demurrers at the close of plaintiff's case and at the close of the whole case should have been sustained. Section 6354, R. S. 1909; Taylor v. George, 161, S. R. 1187; Howlmann v. Lange, 143 Mo. 106; Williams v Edwards, 94 Mo. 447; Leach v. McFadden, 110 Mo 584; Banking House of Wilcoxson & Co. v. Rood, 132 Mo. 256. (2) The invoice of the stock of merchandise was made up by the plaintiff and his brother, Bone. There is no proof that the defendant or the deceased made any mistake whatever, and if there was any mistake or over-payment made, it resulted from the mistakes and negligence of the plaintiff alone, and is therefore unilateral and not mutual, and for such a mistake, plaintiff cannot recover in this case because there is no fraud charged and none proven against the defendant or the deceased. Miller v. Fire Brick Co., 139 Mo.App. 25.
Sheppard & Green for respondent.
(1) The respondent herein, Robert L. Bone, was a competent witness to testify in this case, and was competent to testify to the contract between him and appellant's agent, William H. Friday. Section 6354, R. S. 1909; Clark v. Thias, 173 Mo. 628; Jackson v. Smith, 39 Mo.App. 691; Lehay v. Simpson's Admr., 60 Mo.App. 83; Baer v. Pfaff, 44 Mo.App. 35; Leeper v. McGuire, 57 Mo. 360; Stanton v. Ryan, 41 Mo. 510; Snyder v. Patrick, 162 S.W. 312; Jones on Evidence, p. 991; 40 Cyc., p. 2299; Kansas Mfg. Co. v. Wagoner, 25 Neb. 440; Roberts v. Railroad, 109 N.C. 671; Hildebrant v. Crawford, 65 N.Y. 109; Thayer's Cases on Evidence, pp. 1085, 1087 & 1088. (2) Where money is paid on a mistake of fact, it may be recovered in an action for money had and received. Rogers v. Rehard, 122 Mo.App. 44; Norton v. Bohart, 105 Mo. 615. (3) Conceding for the sake of argument, that respondent was an incompetent witness, the proper objections and exceptions were not made at the time of the witness giving his testimony. A mere general objection to testimony as a whole does not avail when part of the testimony is admissible. Jones on Evidence, 1147; Grimm v. Dundee L. & I. Co., 55 Mo.App. 457; Stephan v. Metzger, 95 Mo.App. 623-4, and cases cited; 1 Thompson on Trials (2 Ed.), 636, and cases cited.
Plaintiff sued to recover a sum of money paid under mistake and prevailed in the circuit court. The defendant has appealed.
Plaintiff purchased a stock of goods and some land as he claims from the defendant through her husband acting as the defendant's agent. Plaintiff alleges in his petition that the amount he was to pay for the stock of merchandise was to be the wholesale price less ten per cent discount, except for the groceries therein; that an invoice was taken of the stock and entered upon a book, with figures set opposite each item therein contained indicating the invoice price, but that in adding these figures a mutual mistake was made of $ 565.75 in favor of the defendant; that the erroneous amount, including said excess, was paid to the defendant by the plaintiff as and for the purchase price of the said stock of goods and the land under the belief and impression upon the part of each of them that it was the correct amount.
Prior to the trial of the case the defendant's husband died and the plaintiff was permitted to testify, over the objection of the defendant, as to conversations and transactions had with the defendant's deceased husband upon which plaintiff bases his right of recovery. To sustain this contention on the part of the appellant, Taylor v. George, 161 S.W. 1187, decided by this court, is cited. The respondent assails our opinion in that case as not supported by the decisions of the Supreme Court and criticizes it on account of the citation of Griffin v. Nicholas, 224 Mo. 275, 328, 123 S.W. 1063, the local citation of which occurs in the dissenting opinion. The respondent contends that the majority opinion therein holds to the contrary, but such we think is not the case. The exact holding of the dissenting opinion is not touched upon in the majority opinion and, therefore, when we adopted the statement contained in the dissenting opinion as the theory sustained by other decisions of the Supreme Court and of the appellate courts of this State, we were not in conflict with the majority opinion in that case.
The respondent also asserts that Curd v. Brown, 148 Mo. 82, 49 S.W. 990, cited in the Taylor case, has been overruled by the opinion in the case of Weiermueller v. Scullin, 203 Mo. 466, 472, 101 S.W. 1088. In this assertion respondent is partly correct but the Curd case was not overruled as to the point involved in the Taylor case. Those cases turned upon the right of the witness to testify as to the facts occurring subsequent to the contract or transaction involved as the basis of the litigation and subsequent to the death of the party.
In addition to what is said in the Taylor case, by this court, relative to the opinion of the Supreme Court in Clark v. Thias, 173 Mo. 628, 73 S.W. 616, it may be stated that the latter case involved the right of the agent to testify when his principal was dead and it is said, after citing without criticism Robertson v. Reed, 38 Mo.App. 32, (a case like the one at bar) and referring to it and others, that "those cases are unlike this. " Considerable, if not all, of the apparent conflict in the authorities in this State may be removed if we but keep in mind that "The reason of the law is the life of the law." The proviso of section 6354, Revised Statutes of 1909, has been, in pursuance of its spirit, construed to extend to and silence one party to a suit when the agent, the alter ego, the party through whom the action arose is dead and thus carry out the object of the proviso "to silence by law one of the parties to a litigated obligation where death or insanity has silenced the other." [Weiermueller v. Scullin, 203 Mo. 466, 472, 101 S.W. 1088.] In such cases as Clark v. Thias, supra, where the agent, upon whose transactions the suit is based, is not dead although his principal, a party to the suit, is dead the reason for disqualifying the agent is absent and he is not rendered incompetent either at common law or by the express terms of the statute. Carried to its last analysis, this reasoning, in cases where the transactions on which the suit is based were had with an agent of a deceased party to the litigation, might render the other party to the case competent as a witness, regardless of the statute because it would be unjust to apply its strict letter when the reason therefor under these facts is absent. In brief,...
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