Bowling v. Hax

• Citation: 55 Mo. 446
• Parties: ALEXANDER BOWLING, et al., Respondents, v. JOHN P. HAX AND HENRY KRUG, Appellants.
• Decision Date: 28 February 1874
• Court: United States State Supreme Court of Missouri

55 Mo. 446

ALEXANDER BOWLING, et al., Respondents,

v.JOHN P. HAX AND HENRY KRUG, Appellants.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Buchanan Circuit Court.

The third instruction given on behalf of plaintiff was as follows: “If the jury believe from the evidence, that defendants owe plaintiffs for corn, or cash paid for freight on cars, or pigs feet, or shrinkage on hogs, they will allow on said third count of plaintiffs' petition such amount therefor, as the evidence satisfies them that the plaintiffs are entitled to.”

The third instruction asked by defendant, and refused by the court, was as follows: “There is no legal evidence before the jury, that said paper was executed by said parties.”

Ben Loan, for Appellants.

I. The statute which directs the filing of the contract, is peremptory. (Wagn. Stat., 1022, § 51; Id., 1046, § 45.)

II. The court erred in admitting the evidence of one of the plaintiffs, to prove the execution of the instrument sued on; it appearing on the face of the paper, that it was attested by a subscribing witness. (2 Phil. Ev. [6 Am. Ed.], 201-2; 1 Greenl. Ev. [9 Ed.], 754, 756, n. 5; Neal vs. McKinstry, 7 Mo., 128.)

III. The first instruction for plaintiffs, tells the jury to find for plaintiffs, if they find “that plaintiffs complied with all of said terms of said contract,” without instructing them as to what acts would constitute a performance of said contract on the part of the plaintiffs. This was error.

A. H. Vories, for Respondents.

I. The old rule requiring the subscribing witness to a contract to be produced, resulted from the fact that parties were not admitted as witnesses. But now parties to the contract being witnesses, the reason for the law has ceased.

NAPTON, Judge, delivered the opinion of the court.

The only questions of law in this case, arise on the failure of the plaintiffs to file the original contract on which the suit was brought with the petition, and on the proof of the contract when the trial was had. There are other questions arising on the instructions which however chiefly bring up the same question.

This action was upon a contract executed or alleged to be executed, by both plaintiffs and defendants. The petition excuses the failure to file the original contract, on the ground, that it was not in possession of the plaintiffs, but a copy of it is filed. The contract, it seems, was deposited with a third person. Sec. 51, of our Practice Act (Wagn. Stat., 1022), provides, that, when any petition or other pleading, shall be founded upon any instrument of writing charged to have been executed by the other party, or his testator or intestate, or other person represented by such party, and not therein alleged to be lost or destroyed, the same shall be filed with such petition or other pleading. The provision of our statute which provides for the filing of the contract sued on, with the petition, applies only to such obligations as are executed only by the party sued, in which cases either the obligation sued on must be filed, or there must be an allegation of loss or destruction of the instrument. In the present case the contract is signed by both parties, plaintiffs and defendants, and is deposited with a third person for safe keeping. The statute does not apply to such a case, and so it was held in Campbell vs. Wolf, (33 Mo., 459).

The principal objection in this case is to the proof of the contract, when it was offered in evidence. The custodian of the contract produced, stated that it had been handed to him as the contract by the parties to it, and one of the plaintiffs was called to prove its execution. It was objected, that as there was a subscribing witness, it was necessary to call him or give some excuse for his absence, and that secondary evidence could not be allowed to prove the execution of the contract. This was formerly unquestionably the law; but since parties have been made competent witnesses it is hard to see how it could be necessary to call a subscribing witness. No subscribing witness could know better than the parties themselves, as to the execution of the contract. The object of requiring a subscribing witness, was to secure the best evidence that was attainable; but the parties to the contract are surely as competent to state the facts, as any subscribing witness. The rule was established when parties were not competent witnesses. Even under this rule the acknowledgment or admission of the parties to the execution of...