[Copyrighted Material Omitted]
Appeal
from Franklin Circuit Court--Hon. W. A. Davidson, Judge.
This
an action upon an account, was brought by plaintiff as
administrator of W. L. Shelton against defendant, before a
justice of the peace at New Haven, Missouri, and appealed by
appellant herein to the circuit court of Franklin county
where a trial by jury resulted in verdict for plaintiff for
amount of claim, and from an order sustaining motion for new
trial, the latter has appealed to this court. At the trial de
novo, plaintiff established a prima facie case, and defendant
testified in his own behalf, identifying a receipt given him
by G. G. Frentrop consisting of a bill setting out the items
of the account in suit, bearing date March 26, 1900, which
was introduced. Defendant, continuing his testimony, stated
he could not remember when he paid it except by date thereon.
On cross-examination he deposed that he did not dispute the
account, and would not say whether the date on the receipt
was correct or not, and that he did not know whether he paid
it before or after the death of Shelton. Frentrop testified
to his management of the business of deceased and dealings
with defendant: that the receipt tendered in evidence was a
bill rendered by witness in his handwriting and showed
receipt of payment, and upon cross-examination added he could
not say positively whether the date upon the receipt was
correct or not, but denied having stated to a witness, who so
testified subsequently in rebuttal, that he, Frentrop, had
said the date upon the receipt was incorrect, and that
witness had dated it back: that he was talking to such
rebutting witness about another bill, a bill for lumber; that
defendant had paid the bill in suit to Shelton by check, and
the latter had witness' receipt for it, and defendant
would find such check if he made search, and that he did not
know where the other bill was. As already alluded to, in
rebuttal, a witness testified that he had asked Frentrop
regarding the receipt and when defendant paid, and that he
replied that defendant paid the bill after Shelton's
death, and he dated the receipt back, but on the witness
stand at trial before the justice, Frentrop swore he did not
know when he gave the receipt, but nothing was then said
about two accounts or any payment by a check and this
rebutting witness said he was speaking about the account in
suit, the only one in which he was interested. Another
witness for plaintiff, recalled in rebuttal, testified that
he had overheard Frentrop say at New Haven, that he dated the
receipt back, and there had been no question about another
bill till the day of trial in the circuit court. The trial
proceeded to a close and after verdict for plaintiff
defendant filed a motion for new trial containing the
following ground:
"Because
at the trial of said cause, the defendant himself and his
counsel were surprised by the testimony of G. G. Frentrop to
the effect that defendant had paid him after the death of
said Shelton $ 14.85 in payment of lumber account for lumber
he sold and delivered to defendant out of the lumber yard of
said Shelton; that defendant and his counsel were also
surprised by the testimony of said Frentrop to the effect
that defendant paid to said Shelton, April 17, 1900, $ 14.83
by check in payment of the account sued on read in evidence
and that said Shelton directed him as agent to give defendant
receipt for account sued on; that as a matter of fact the
testimony of said Frentrop given as aforesaid, is true,
except that he called the draft hereto attached a check,
" and accompanied it by affidavits as follows:
"Now
comes F. W. Pehle who first being duly sworn upon his oath
says, that since the trial of the above named cause he has
discovered that during the lifetime of W. L. Shelton, to-wit,
between the fourteenth and seventeenth day of April, 1900, he
paid the account here sued on by draft drawn by the Bank of
Union on the Franklin Bank, St. Louis, payable to F. W.
Pehle, Coll., for the sum of $ 14.83 which said draft said
defendant indorsed and delivered to said Shelton or to his
agent, G. G. Frentrop, on which draft said Shelton received
and collected said sum of $ 14.83, on or about the
seventeenth day of April, 1900, in payment of the account
sued on in this case.
"That
said evidence has come to the knowledge of the defendant
since the trial of this cause, and that it was not owing to a
want of due diligence that said evidence did not come to his
knowledge sooner.
"That
said draft whereby said debt was paid has ever since the time
of its issue and payment been in the possession of the Bank
of Union, and without the knowledge of the defendant. That
said draft is the same draft as the one attached to this
motion and marked exhibit 'A', to the surprise of the
said defendant. That the signature of the said F. W. Pehle,
Coll., on the reverse side of said draft is the genuine
signature of said defendant, and that the indorsement,
'W. L. Shelton, G. G. Frentrop,' is in the
handwriting of G. G. Frentrop, agent of said Shelton.
"That
the defendant did not know these facts at the time of the
trial of this case and was greatly surprised at the testimony
of G. G. Frentrop that there were two accounts, one of which,
viz., the one here sued on, having been paid by a check
during the lifetime of said Shelton, but that he has since
discovered that there were in fact two accounts and that he
in fact paid the account here sued on by the draft as above
detailed. That the account above mentioned and not paid by
draft, was for the sum of $ 13.90, which sum is so near the
amount of the account sued on, and that said account was paid
at so near the same time as this account that the defendant
was misled thereby, and believed that there was but one
account.
"Said
F. W. Pehle further says that he was present at the trial of
this case in the justice court and heard the testimony of G.
G. Frentrop in that court, to the effect that the account
sued on was paid to him in cash at or about the time of the
taking of the inventory, and that he did not testify then
that there were two accounts, nor that this account was paid
by check or draft, and so said defendant was surprised at the
testimony of Frentrop as well as at the fact that there were
in fact two accounts and that the account sued on was paid by
the draft above mentioned. Said defendant further says that
he believes the newly discovered evidence above mentioned
will upon a new trial change the verdict of the jury.
"And
this affiant further says that at and prior to the fourteenth
day of April, 1900, he resided in the city of Union in said
county and was engaged in his official duties as collector of
said county, and during all said times bought seven or eight
divers lots of lumber from said W. L. Shelton, from his
lumber yard in New Haven, Missouri, which said lots of lumber
were delivered by the agent of said Shelton to divers agents
of this affiant, so that this affiant was not in a position
at and before the trial of this cause to know all the facts
touching the payment of said several accounts."
"This
affiant, A. W. Hoffman, of lawful age, first being duly sworn
on his oath says that he resides in the city of Union, in the
county and State aforesaid; that he is the duly qualified and
acting cashier in charge of the Bank of Union, a banking
corporation, doing a general banking business in said city of
Union in said county and State aforesaid; that the draft
marked exhibit 'A' hereto attached and also to the
motion for a new trial in the cause of M. T. Connally,
administrator of the estate of W. L. Shelton, deceased, v. F.
W. Pehle, was issued by said Bank of Union on the fourteenth
day of April, 1900, drawn on the Franklin Bank at St. Louis
for the sum of $ 14.83, payable to F. W. Pehle, collector,
and that the indorsement thereon purporting to be the
indorsement of said Pehle according to affiant's best
knowledge and belief is the signature of said F. W. Pehle,
and in the handwriting of said Pehle, and that said F. W.
Pehle did considerable business with said Bank of Union and
that affiant is acquainted with his signature; that the
stamps on the back of said draft indicate that said draft was
paid and passed through the Bank of New Haven, at New Haven,
Missouri, and through the St. Louis Clearing House at St.
Louis, Missouri, on and before the 27th day of April, 1900,
and next after the same had been paid to the indorsee of
Pehle, to-wit, W. L. Shelton, and that said draft has been in
the possession of said Bank of Union since shortly after said
twenty-seventh day of April, 1900, until the fourteenth day
of March, 1903.
"That
this affiant is now and has for more than five years been
cashier of said Bank of Union; that said draft was issued as
aforesaid by said bank through him acting in said capacity
and that this affiant, if called as a witness, will testify
to the foregoing facts on a trial of said cause."
"This
affiant, Jesse H. Schaper, of lawful age, first being duly
sworn on his oath, states that he did not testify as a
witness upon the trial of the case of M. T. Connally
administrator of the estate of W. L. Shelton, deceased
plaintiff, v. F. W. Pehle, defendant, in this court; that
this affiant was the counsel for, and as such represented the
said defendant in the trial of said cause before the justice
of the peace in the city of New Haven, in Franklin county,
Missouri, on the twenty-second day of November, 1902, which
trial resulted in a verdict and judgment for the defendant
and that at said trial before the justice, one ...
