Conley v. Johnson
| Decision Date | 14 June 1920 |
| Citation | 222 S.W. 891,204 Mo.App. 185 |
| Parties | LAURA A. CONLEY, Respondent, v. JENNIE G. JOHNSON, Executrix, etc., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. David H. Harris, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Harris & Price for respondent.
George S. Starrett and N. T. Gentry for appellant.
This action, originating in the probate court, is on a demand against the estate of Spurgeon G. Johnson, deceased, founded upon a promissory note dated February 1, 1907, due one day after date for $ 1216.60 payable to the order of John E Johnson. The note was credited on the date it was issued with $ 600, and a further credit of $ 5 appeared on the back thereof bearing the date of February 1, 1914.
The maker of the note, Spurgeon G. Johnson, and the payee thereof, John E. Johnson, were brothers. Both were dead at the time of the trial. The defendant is Spurgeon G Johnson's widow and his administratrix. The plaintiff was formerly the widow of the payee John E. Johnson, but is now married to one, Conley. She claims that during the life of John E. Johnson he assigned the note to her.
Upon a trial in the probate court, judgment went in defendant's favor; and plaintiff appealed to the circuit court where it was tried de novo. Here plaintiff obtained a verdict and judgment for $ 1286.86 and defendant has appealed.
The two brothers lived some seven or eight miles out in the country from Columbia and were engaged extensively together in farming and raising stock. John E. Johnson died in 1910, and as stated, his widow, Laura A. Johnson, afterward married and is now the plaintiff Laura A. Conley. Spurgeon G. Johnson did not die till in January, 1919. The suit was instituted on May 18, 1919, and consequently, if the alleged credit of $ 5 as of February 1, 1914, was not a proper credit such as would constitute an acknowledgment of the indebtedness by the maker, then the note was barred by the ten years Statute of Limitations. The genuineness and validity of this credit was, therefore, a very acute and important issue in the case,
The only witness who testified concerning the alleged five dollar payment was one, Hopper, who was plaintiff's witness. He did not testify in the probate court, nor was he subpoenaed to appear at the trial in the circuit court until after he had reached the courthouse on the day of the trial. He resided upon plaintiff's farm and worked there. He testified that more than five years before the trial, some time in the latter part of January, 1914, he was residing on his brother's place but happened to be at the John E. Johnson residence and that Mr. Crane, Mrs. Johnson's father was there; that Spurgeon G. Johnson came there and said to Mrs. Johnson he wanted to see her on some business and they went into an adjoining room where they talked for perhaps ten minutes and then Mrs. Johnson came to the door and called to her father, Mr. Crane, and he went in leaving the door open; that he heard them talking about a payment on a note; that Mrs. Johnson told Mr. Crane Spurgeon made a $ 5 payment on the note. Witness didn't know what Crane said, but that "it was all right or something;" that Mrs. Johnson went out, witness could see her through the open door as she went; that she went into the west room and then Mr. Crane came to him (the witness), and told him he wanted him to witness that Spurgeon was going to make a payment on the note; that as witness came to the door, Mrs. Johnson came by him into the room holding what looked like a note in her hand; that Mr. Johnson handed her a bill or paper money--he supposed it was $ 5 he heard them say "five dollars" anyhow. Witness did not see the credit put on the note, but says he heard them speak of a note, that Mrs. Johnson told him, Spurgeon, that $ 5 was "a mighty small payment on a six hundred and some odd dollar note" and that Mrs. Johnson asked something about what date it was and Mr. Johnson (Spurgeon) told her "it was so near the 1st of February to just put it down the 1st of February, that was the date of the note or something like that;" that this transaction took place some time in the latter part of January, witness did not know just what date in January it was. Defendant had evidence to the effect that Spurgeon Johnson was not in Boone county on February 1, 1914, but some days prior thereto had left home and gone to his farm in Pettis county.
As this witness was a new factor in the case and defendant had no intimation that he would be a witness, defendant...
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