Byrne v. Hafner Feed Co.

• Decision Date: 02 November 1909
• Citation: 143 Mo. App. 85,122 S.W. 349
• Parties: BYRNE v. HAFNER FEED CO.
• Court: Missouri Court of Appeals

122 S.W. 349

143 Mo. App. 85

BYRNE v. HAFNER FEED CO.

St. Louis Court of Appeals. Missouri.

November 2, 1909.

1. EVIDENCE (§ 317) — HEARSAY.

In an action against a corporation for a debt owing by its general manager on the allegation that defendant had assumed the debt, testimony that in another action, to which defendant was not a party, a witness testified that defendant had assumed the debt in suit, is hearsay.

2. EVIDENCE (§ 271) — SELF-SERVING DECLARATIONS.

In an action against a corporation for a debt owing by its general manager on the allegation that defendant had assumed it, testimony that in another action to which defendant was not a party such general manager testified that defendant had assumed the debt is a self-serving declaration, and not binding on the defendant.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by Daniel P. Byrne against the Hafner Feed Company. From a judgment for plaintiff, defendant appeals. Reversed.

Jno. O. Marshall and Dalton & Harris, for appellant. Wm. A. Kinnerk, for respondent.

GOODE, J.

This cause began before a justice of the peace by the filing of a complaint wherein plaintiff alleged defendant is a corporation; that Joseph Hafner is indebted to plaintiff in the sum of $125, the amount of a judgment for debt, interest, and costs recovered by plaintiff against said Hafner before a justice of the peace; that subsequent to the recovery of said judgment defendant, the Hafner Feed Company, promised to pay said debt of Joseph M. Hafner to this plaintiff, wherefore plaintiff prayed judgment against defendant for the sum of $125. The cause proceeded to the circuit court, where plaintiff obtained judgment, and an appeal was taken to this court.

Several reasons are assigned why the judgment of the circuit court should be reversed; i. e., failure of the complaint to state defendant assumed the debt of Joseph Hafner in writing, want of competent evidence to prove defendant assumed the debt at all, or promised to pay it, and that whatever evidence was received to prove the fact was too vague and uncertain to support a judgment. This plaintiff recovered a judgment, as alleged, against Jos. M. Hafner before a justice of the peace, and thereupon summoned the Oscar W. Blanke Ice & Coal Company as garnishee; we suppose on an execution issued on the judgment. The only evidence introduced in the present action to prove the Hafner Feed Company had promised for a valuable consideration after plaintiff obtained judgment against Hafner to pay the amount of it to plaintiff was the testimony of two witnesses, who said, in substance, that on the trial of the garnishment issue between Blanke Ice & Coal Company as garnishee and plaintiff, Jos. M. Hafner and John O. Marshall testified defendant corporation had assumed the debts of said Hafner, and Hafner had turned over his assets to the corporation in part payment of the capital stock of defendant; that Hafner further testified in the garnishment issue "he was what might be called acting as general manager for defendant—that is, the company kept on just the same—that he was an officer and general manager, the thing running just as it always did." It is obvious that what Marshall swore to in the other case, to which this defendant was not a party, was incompetent to establish liability against defendant, because it was hearsay as to this defendant, who had no opportunity to cross-examine said Marshall. The same is true as regards the testimony of Jos. M. Hafner, unless an exception is to be allowed to the general rule excluding hearsay testimony in favor of what he testified on the garnishment trial, because he was acting as general manager of defendant corporation. The contention is his statement was binding on the corporation...