Crawford v. Doppler
| Decision Date | 19 February 1894 |
| Parties | Crawford v. Doppler, Administrator, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. -- Hon. J. M. Sandusky, Judge.
Affirmed.
J. W Coburn for appellant.
(1) The statement sued on does not allege any promise to pay interest, or that the claim was due, or had been demanded nor was any promise to pay interest really proved. The statute, section 5972, provides when interest shall be allowed; and the petition or statement, even in the probate court, should show how the debt earned interest. (2) As the promise to pay interest could not have been made prior to the McAllister loan in 1884, no back interest should have been allowed; the instructions, however, allowed it from the alleged date of the loan. There was no consideration shown for the back interest. Redman v. Hampton, 26 Mo.App 504. (3) Instructions number 1 asked by the plaintiff, and number 1 given by court of its own motion, were antagonistic, and could not be read together or reconciled. The first authorized the jury to find interest if it found that there was a promise to pay interest. The other instruction did not require any promise. Who can say by which one the jury was governed? State v. Herrell, 97 Mo. 105; McNichols v. Nelson, 45 Mo.App. 454; State v. Brumley, 53 Mo.App. 131.
M. G. & J. Moran with W. H. Rogers & J. F. Harwood for respondent.
(1) An oral contract to pay interest is valid and will be enforced to the extent of six per cent. interest. R. S. sec. 5972; Filley v. McHenry, 71 Mo. 417. The promise in this case was to pay more than six per cent. interest, and while this promise can not be enforced because not in writing, yet plaintiff is entitled to six per cent. from the date of the contract promising to pay a higher rate. Filley v. McHenry, supra, and sec. 5972 supra. (2) The supreme court will not reverse a judgment unless it appears that error has been committed by the lower court materially affecting the merits of the action to the prejudice of appellant. R. S. 1889, sec. 2303; Gordon v. Eans, 97 Mo. 603; Valle v. Picton, 91 Mo. 215; State ex rel. v. Edwards, 78 Mo. 478; Miller et al. v. Graham, 41 Mo. 509; Hunter v. Miller, 36 Mo. 143; Orth v. Dorschlein, 32 Mo. 366. (3) A judgment will not be reversed because of the giving of erroneous instructions unless the appellant was injured thereby. R. S. 1889, secs. 2100-2303; Otto v. Bent, 48 Mo. 23; Wells v. Zaller, 59 Mo. 509; Haniford v. Kansas City, 103 Mo. 172; Kinney v. Railroad, 105 Mo. 287; Mellor v. Railroad, 105 Mo. 462.
OPINION
On the twenty-seventh of February, 1891, the plaintiff filed the following claim in the probate court of DeKalb county against the estate of D. J. Crawford, deceased, who died on the twenty-eighth of March, 1890.
The estate of David J. Crawford, deceased.
To Mary Crawford, Dr.
August, 1883.
To money loaned deceased
$ 2,500 00
To Int. on same to date, 6 per cent
1,100 00
June 18, 1888.
Credit by 1 cow
$ 25 00
January, 1889.
Credit by cash
November, 1889.
Credit by cash
$ 65 00
$ 3,600 00
Which account was properly subscribed and sworn to by Mary Crawford.
The trial resulted in a verdict for respondent. An appeal was taken by appellant to the circuit court of DeKalb county where, after a hung jury, appellant took a change of venue to the circuit court of Clinton county, where, on a trial on May 24, 1892, the jury returned the following verdict: "We, the jury, find for the plaintiff for the sum of $ 2,500 and interest, less the payments of $ 60, leaving a balance due of ($ 3,740) thirty-seven hundred and forty dollars." From the judgment entered upon this verdict the administrator appeals.
The evidence for the plaintiff tended to prove that she was the mother of D. J. Crawford, deceased; that for many years prior to 1881, she was a widow living with her family of children in St. Joseph, keeping boarders; that four of her children were boys, employed in railroad service whose wages she drew during their minority and afterwards; that one of them was killed in the year 1870; and that in 1872 she received the sum of either $ 1,200 or $ 2,500 for his death from the railroad company -- there is a conflict of testimony as to the amount -- that in the year 1881 she had accumulated from these various sources between $ 3,000 and $ 4,000; that in March of that year, she and her son, the deceased, purchased a lot in St. Joseph for which they paid the sum of $ 5,600 that the deed was taken in the name of the son, and that the plaintiff furnished $ 2,500 of the purchase money; that afterwards in July, 1883, her son, the deceased, entered into a contract for the purchase of a farm of eight hundred acres, for which he was to pay $ 20,000, and on which he paid the sum of $ 2,000; that in order to raise the money to pay the remainder of the purchase money for the farm, it became necessary for him to sell the lot in St. Joseph belonging to him and his mother, and to borrow some more money; that accordingly, on the twenty-seventh of August, 1883, he sold the lot for $ 5,600, agreeing with his mother that he would pay the $ 2,500 which she had invested therein as soon as he had finished paying off his other indebtedness for the farm, and that he would pay her the same rate of interest that he had to pay one McAlister from whom he expected to borrow the additional amount that he needed to make up the purchase money for the farm; that on the next day he paid the money received for the lot together with other moneys amounting to the sum of $ 16,000 on his contract for the farm; that there was some defect in the title and the remaining $ 2,000 was not paid perhaps until after the loans from McAlister, one of which was made on the thirty-first of March, 1884, and was paid off March 28, 1885, and the other made October 18, 1884, and paid on the seventeenth of October, 1885, on both of which the deceased paid eight...
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