Crow v. Crow

• Decision Date: 19 March 1907
• Parties: CROW v. CROW et al.
• Court: Missouri Court of Appeals

100 S.W. 1123

124 Mo. App. 120

CROW v. CROW et al.

St. Louis Court of Appeals. Missouri.

March 19, 1907.

1. TRIAL—VERDICT—CORRECTION BY JURY.

Rev. St. 1899, § 773 [Ann. St. 1906, p. 750], provides that where there are several parties defendant one final judgment shall be given. In an action against two defendants the court instructed the jury to find for one of them, and submitted the issues as to the other, and the verdict was in favor of the latter, without reference to the former. Held, that the court should have required the jury to find a verdict as to both parties, so that a final judgment, disposing of the case as to both, could have been entered.

2. APPEAL — NEW TRIAL—INSUFFICIENCY OF EVIDENCE—REVIEW.

Where in an action on a note the evidence showed its assignment from the payee to plaintiff, and a payment which took the note out of the statute of limitations, the action of the trial court in granting a new trial, after verdict for defendant, will not be disturbed; substantial evidence having been given in support of the cause of action.

3. WITNESSES — COMPETENCY—TRANSACTIONS WITH DECEASED PERSON.

Under Rev. St. 1899, § 4652 [Ann. St. 1906, p. 2520], providing that where an executor is a party the other party shall not testify in his own favor unless the contract in issue was originally made by the person who is living and competent to testify, one suing on a note executed by two makers, one of whom is dead, is not competent to testify that the deceased maker had made a partial payment, so as to remove the bar of limitations, or to the physical fact that an indorsement had been made at the time purported to have been made.

4. SAME—WAIVER.

A holder of a note on the death of the maker presented the same as a demand against his estate, and on the hearing thereof objection was made to his testifying, on the ground that he was a party to a contract where the opposite party was dead; but the court permitted him to testify as to the facts connected with the execution of the note, the indentity of the signature, and the date thereof, whether it was made at the time indicated, and as to whether he was the owner thereof. Counsel for the adverse party on cross-examination brought out the fact of a partial payment by decedent. Held, that the objection to the competency of the holder to testify to such payment, in an action against the surviving maker and the executor of the deceased co-maker, was not waived.

5. LIMITATION OF ACTIONS—PART PAYMENT— PROOF.

Where an indorsement of payment on a note made before the bar of limitation attaches is relied on to prevent the bar, it must be shown that the payment was made at the time it purports to have been made, or that it was made by the consent of the maker.

Appeal from Circuit Court, Washington County; Jos. J. Williams, Judge.

Action by B. F. Crow against John E. Crow and another. From a judgment granting a new trial after verdict for defendants, they appeal. Affirmed.

W. M. Dearing and E. T. Eversole, for appellants. A. L. Reeves and A. Harrison, for respondent.

BLAND, P. J.

The action is upon the following promissory note: "Twelve months after date we or either of us promise to pay Joseph Crow or order the sum of three hundred dollars for value received, bearing interest from date until paid at ten per cent annum, this the fourteenth day of May, 1888. [Signed] Jno. E. Crow, R. M. Crow." The following assignment and credit are indorsed on the back of the notice: "I sign the within note over to B. F. Crow. [Signed] J. Crow." "February 10th, 1898. Paid on the within note by R. M. Crow, forty bu. oats at 30c per bu., $12.00." The payee has been dead for a number of years. R. M. Crow, one of the makers, is also dead, and the suit was brought against his executrix and the other maker of the note, John E. Crow. The petition was in the usual form. The answer pleaded the 10-year statute of limitations, alleged that the credit of $12 entered upon the note was entered without the knowledge or consent of the makers, or of either of them, and denied that the payment as indorsed was actually made. In respect to the assignment of the note, the answer stated that defendants had no knowledge thereof sufficient to form a belief, and demanded proof. Plaintiff introduced competent evidence tending to show that the signature "J. Crow" to the assignment on the back of the note was the genuine signature of Joseph Crow, the payee. Plaintiff offered himself as a witness in his own behalf. The trial judge ruled that he was not a competent witness to testify to any transaction he had with R. M. Crow, deceased, as to the defendant executrix, but was competent to testify against the other defendant, John E. Crow, and to testify that R. M. Crow let him have 40 bushels of oats, at 30 cents per bushel, on February 10, 1898, and consented that the purchase price, $12, should be credited on the note, and that the credit was entered at the time. Defendants excepted to this ruling. For the purpose of showing his competency as a witness, plaintiff introduced evidence showing that prior to the commencement of the suit he presented the note to the probate court of Washington county as a demand against the estate of R. M. Crow; that the executrix resisted the demand, and on a trial in that court her attorney waived the objection to the plaintiff's competency by cross-examining him as to the whole case. Plaintiff was defeated in the probate court, and appealed to the Washington circuit court, where he took a nonsuit, and afterwards commenced the present action. As to what transpired at the trial in the probate court, plaintiff testified that Judge Dearing, counsel for the executrix in that court, objected to his competency as a witness, on the ground that R. M. Crow was dead, and the probate judge overruled this objection. Judge Dearing testified that he objected to plaintiff testifying to any fact in the probate court, on the ground that he was incompetent, for the reason R. M. Crow was dead. Mr. Reeves, counsel for plaintiff, gave the following version of what transpired in the probate court: "As I remember, when I offered this witness, an objection was made to his competency upon the ground that he was a party to a contract where the opposite party was deceased, and I took the position that where there were two parties to the contract on the other side, that he might testify, but in that the court overruled me, and then I offered this witness to testify as to the facts connected with the execution of the note, and to identify the signature, and to testify as to the date of the document, and as to whether or not it was made at the time indicated on the note, and as to whether or not he was the owner of the note, and, as I remember it, the court sustained me in my position, and then in the cross-examination, as I remember it, Mr. Dearing brought out all the facts in connection with the case." In rebuttal Judge Dearing replied as follows: "I don't agree with the counsel altogether. I objected to the introduction of this witness for all purposes, as he was incompetent under the statute, and asserted my objection very explicitly to the court, and it overruled me, and Mr. Reeves examined him, as I remember, for a considerable length of time, and all about this payment, and I at the time objected to that specifically, and urged my objection the best I could." The court peremptorily instructed the jury to find the issues for the defendant executrix, and submitted the issues as to the other defendant on instructions. The jury returned the following verdict: "B. F. Crow v. John E. Crow and Margaret E. Crow, executrix of the estate of R. M. Crow. We the jury find the issues in this case for the defendant John E. Crow. Henry A. Hill, Foreman." On motion of plaintiff the court set aside the verdict, and granted a new trial on the following grounds: "The verdict is not supported by the testimony, because of the further fact that in the opinion of the court an injustice has been done by the verdict, and because of the third fact that in the opinion of the court the verdict of the jury was the result of passion on the part of the jury, induced by impassioned and improper argument of counsel on the trial of the case, and the motion for a new trial is sustained as to all parties...