County of Jackson ex rel. Bryson v. Enright

• Decision Date: 18 February 1918
• Citation: 201 S.W. 599,198 Mo.App. 527
• Parties: COUNTY OF JACKSON ex rel. ORBIE BRYSON, Respondent, v. M. M. ENRIGHT, WALTER GRAY and EMMA N. HEINS, Administratrix of the Estate of H. J. HEINS, Deceased, Appellants
• Court: Kansas Court of Appeals

201 S.W. 599

198 Mo.App. 527

COUNTY OF JACKSON ex rel. ORBIE BRYSON, Respondent, v. M. M. ENRIGHT, WALTER GRAY and EMMA N. HEINS, Administratrix of the Estate of H. J. HEINS, Deceased, Appellants

Court of Appeals of Missouri, Kansas City

February 18, 1918

Appeal from Jackson Circuit Court.--Hon. Kimbrough Stone, Judge.

AFFIRMED.

Judgment affirmed.

Sparrow & Page and James Pickett for appellants.

E. H Hamilton and A. R. McClanahan for respondents.

OPINION

BLAND, C.

Relator, Orbie Bryson, as the wife of George W. Bryson deceased, brought this action against defendant Enright as principal and defendants Heins and Gray as sureties on a statutory dramshop bond, alleging that on ten different occasions defendant Enright, the keeper of the saloon, sold intoxicating liquor to her said husband, George W. Bryson, an habitual drunkard, after she had notified him not to do so, and further alleging that finally in a fit of intoxication her husband committed suicide by taking poison.Plaintiff recovered a judgment in the sum of two thousand ($ 2,000) dollars, the same being the maximum penalty for four sales of intoxicating liquor made to deceased by defendant Enright, and defendants have appealed.

Defendants urge that the bond was given in the name of the State of Missouri and not in the name of the county as required by section 7196,Revised Statutes 1909, and that their demurrer to the evidence should have been sustained.The petition alleges that defendants executed according to law the dramshop license bond sued upon, and having described a valid instrument and defendants having failed to deny its execution under oath, its execution, as described, stands confessed.[Johnson v. Woodmen of the World,119 Mo.App. 98, 102;Love v. Central Life Ins. Co.,92 Mo.App. 192.]The execution of the bond having been admitted by the defendants, plaintiff introduced evidence and rested her case without introducing the bond in evidence.

During the cross-examination by plaintiff of the defendant Enright, while the defendants were putting in their case, Enright refused to say that he had executed the bond, and for the purpose of showing his signature thereto and the execution thereof by Enright plaintiff introduced the bond in evidence, apparently overlooking the fact that the pleadings settled all of these matters in favor of plaintiff.The bond thus introduced in evidence was made in favor of the State of Missouri.The bond was not introduced by plaintiff in support of her case.Defendant Enright objected to the introduction in evidence of the bond and at no time did defendants themselves introduce the bond in evidence.A defense that the bond was not properly executed was not made at the trial.The burden of the defense was that plaintiff never warned the saloon keeper or any of his agents not to sell liquor to deceased; that plaintiff's character was bad and that she was not worthy of belief.The case was not tried on the theory that the bond was not executed in the name of the county.Defendants, having admitted the execution of the bond, the same not being introduced by plaintiff in making her case (but only during the defense for impeachment, purposes) and defendants having failed to use the bond as a matter of defense, but tried the case on other theories, we fail to see how any question affecting the validity of the bond can now be raised.

It is stated in Johnson v. Woodmen of the World, supra:

"By failing to deny the execution of the instrument under oath, the defendant admitted or confessed its execution.[See746, R. S. 1899.]The execution of what instrument was confessed?Manifestly the instrument alleged or described in the petition.As said in Hart v Harrison,91 Mo. 414, 422, 4 S.W. 123, the instrument 'described in the petition,' is confessed.There is therefore no necessity for introducing it in evidence, since its existence, as set forth, being admitted, no issue is made upon which evidence can apply.[State to use v. Chamberlin,54 Mo. 338;Thomas v. Life Ass'n,73 Mo.App. 371;Love v. Ins. Co.,92 Mo.App. 192.]When it is said in the cases cited that the execution of such an instrument stood confessed as a valid contract, it was meant, of course, that it was a valid contract, so far as its execution was concerned.For, there might be cases where the allegations setting forth or describing such instrument would show, that though executed, it was not, legally, a binding obligation.That, however, is not the case here.The petition described a valid instrument and its execution, as described, stands confessed.

"But though the execution of an instrument of writing, as set forth by a plaintiff, is confessed, it does not follow that the defendant should not be allowed to show, under a proper answer, that no consideration for the instrument had been rendered.We therefore can see no reason why, in this case, the defendant would not have been able to show, under a proper answer, that deceased Johnson failed to pay his assessments and dues and thereby failed to render the consideration necessary to continue the certificate as a binding contract after its execution.By the terms of the statute, the certificate, as we have said, imports a consideration.But that, of course, does not prevent an affirmation showing that, in point of fact, there...