Brown v. Carson

• Citation: 111 S.W. 1181,132 Mo. App. 371
• Parties: BROWN v. CARSON.
• Decision Date: 29 June 1908
• Court: Court of Appeal of Missouri (US)

111 S.W. 1181

132 Mo. App. 371

BROWN v. CARSON.

Kansas City Court of Appeals. Missouri.

June 29, 1908.

1. LIMITATION OF ACTIONS — PARTIAL PAYMENT —EVIDENCE—INDORSEMENT.

A credit being indorsed on a note after the statute had run against the note, the resuscitating payment must be proved by evidence aliunde the indorsement.

2. EVIDENCE—HEARSAY.

Testimony of a witness to show a resuscitating payment on a note is properly excluded; he, though testifying that he had several ways of knowing the payment was made, disclosing only one of them, that of hearsay information from the payee.

3. WITNESSES — EXAMINATION — QUESTION CALLING FOR CONCLUSION.

The question, "State whether or not the heirs of the maker of a note admitted in witness' court that such maker had paid the payee $100," is objectionable as calling for an inference or conclusion from facts; while the inquiry should have been for the exact words of the heirs, or at least the substance of what they said.

4. TRIAL — SUFFICIENCY OF OBJECTION TO QUESTION.

The question, "State whether or not certain persons admitted in court that a payment was made," is so obviously incompetent, as calling for a conclusion, that a general form of objection is sufficient.

5. SAME—OFFER OF EVIDENCE—SHOWING CONNECTION WITH ISSUE.

The issue being whether a payment of $100, indorsed on a note as of June 12, 1898, was made, and so took the note out of the bar of the statute, an offer in evidence of a check of $140, drawn by a firm of mule dealers, in May, 1898, in favor of the maker of the note, and indorsed by him in blank, having no apparent connection with the indorsement on the note, was properly rejected, in the absence of an offer to show connection between the check and the indorsement on the note.

Appeal from Circuit Court, Carroll County; John P. Butler, Judge.

Action by T. J. Brown against James T. Carson, administrator of James J. Brody, deceased. Judgment for defendant. Plaintiff appeals. Affirmed.

L. H. Woodyard and Busby & Busby, for appellant. Jones & Conkling and Lozier, Morris & Atwood, for respondent.

JOHNSON, J.

This action originated in the probate court of Carroll county on the 27th day of November, 1906, by the presentation of a promissory note as a demand against the estate of James J. Brody, deceased. The statute of limitations was successfully interposed as a defense in the circuit court where the cause was tried on appeal, and, in obedience to a peremptory instruction, the jury returned a verdict for defendant. In due course of procedure plaintiff brought the case here by appeal.

Plaintiff offered in evidence as the foundation of his demand, the following promissory note: "$120.50. Carrollton, Mo., Jan. 1, 1876. One day after date, I promise to pay to the order of ____, at ____, T. J. Brown, one hundred twenty 50/100 dollars, for value received, negotiable and payable without defalcation or discount, with interest from date at the rate of ten per cent. per annum, payable annually, and if interest be not paid annually, or when due, to become as principal and bear the same rate of interest. James J. Brody." Credits were indorsed on the back of the note as follows: "Feb. 22 1884. By calf at $15.00. T. J. Brown." "Sept. 12, 1885. By calves at fifteen dollars. T. J. Brown." "June 12th, 1898, received on the within note one hundred dollars. T. J. Brown." Defendant objected to the indorsements being admitted in evidence without proof that the payments indicated by them had been made on the note. The objection was sustained, and plaintiff excepted. A son of plaintiff then was introduced as a witness and interrogated concerning the credit of $100 dated June 1, 1898. We quote from his examination: "Q. I will get you to state if you remember the occasion of Mr. Brody paying your father $100. A. I wasn't there in person when he paid it. (Objection by defendant. Sustained.) Q. I will get you to state if your father received the $100 from Mr. Brody. (Objection. Overruled.) A. I have several ways of knowing that. I have all the confidence in the world in his statement. The Court: That's not proper evidence. (Exception by plaintiff.) A. Well, I didn't see it. Q. Where is your father at the present time, Mr. Brown, and why is he not—(Objection by defendant. Overruled.) A. He's at home or was this morning when I left Bosworth. Q. He's feeble? What's his physical condition? (Defendant objected. The objection was sustained, and no further questions were asked the witness.)" Plaintiff argues that the court committed prejudicial error in striking out the testimony of this witness. It will be observed that the statute of limitations had run against the note at the time of the credit of $100 shown by the indorsement, and it is clear the note was barred by the statute when this action was brought, unless it was saved by that credit. The burden devolved on plaintiff, to prove the fact of the resuscitating payment by evidence aliunde the indorsement, which standing alone was no evidence of that fact as it partook too much of the nature of a self-serving act of the payee. The rule thus is stated in Goddard v. Williamson's Adm'r, 72 Mo., loc. cit. 133: "When plaintiff proves that the credit was made at a time when it was against his interest to make it, it is admissible. If made by or with the consent of the payor of the note, it is admissible, but a mere...