Dawson v. Wombles

• Decision Date: 02 February 1904
• Parties: DAWSON v. WOMBLES.
• Court: Missouri Court of Appeals

78 S.W. 823

104 Mo. App. 272

DAWSON v. WOMBLES.

Court of Appeals at St. Louis, Missouri.

February 2, 1904.

WITNESSES — COMPETENCY — TRANSACTION WITH DECEDENT—CLAIM AGAINST ESTATE — VERIFICATION—SUFFICIENCY OF AFFIDAVIT —AMENDMENT.

1. An agent for the payee of a note, in the transaction leading to its execution, is not incompetent to testify in favor of plaintiff in an action on the note against the maker's administrator, if he has no interest in the suit.

2. An affidavit by an agent in support of a claim against a decedent's estate is not defective for not stating that he had the management of the business out of which the demand grew, or had means of knowing the verified facts— matters which may be shown aliunde—but it is defective if it does not state, as required by Rev. St. 1899, § 196, the fact that it was made by an agent.

3. An affidavit by an agent in support of a claim against a decedent's estate, defective for failure to disclose that it was made by an agent, may be cured by amendment.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by Jennie L. Dawson against S. D. Wombles, administrator of Jas. R. Palmer, deceased. From a judgment for defendant, plaintiff appeals. Reversed.

Martin & Woolfold and Pearson & Pearson, for appellant. W. A. Dudley and O. H. Avery, for respondent.

GOODE, J.

This case is on a note presented by the appellant, Jennie L. Dawson, against the estate of Jas. R. Palmer, deceased. The note was given July 2, 1897, to Nancy E. Palmer, the mother of the maker, for $515.50, due one day after date, and drew interest at 8 per cent. It was indorsed by the payee to Jennie L. Palmer, December 10, 1888, and was credited with a payment of $22 on the 5th day of September, 1893. Respondent's counsel contends it is not clear whether the credit was indorsed in 1891 or 1893, but we must look to the transcript for the facts, and the transcript shows it was indorsed in 1893. Shortly after the note was executed, although it had been previously assigned to Jennie L. Dawson (née Palmer), it was deposited with her father, Jno. W. M. Palmer, who was the brother of the deceased, Jas. R. Palmer, and both of them were sons of the payee. The purpose of the payee in depositing the note with Jno. W. M. Palmer was to prevent the maker from being pressed for payment. No question is made about appellant's ownership. The note was given as the result of a settlement between Jas. R. Palmer and his mother. The credit on it grew out of an arrangement between Jno. W. M. Palmer and Jas. R. Palmer in regard to the funeral expenses of their mother, who died in 1890. It was agreed between the two sons that each should bear one-half of her funeral expenses, but that Jas. R. Palmer should have credit for the half he paid on the note. Jno. W. M. Palmer advanced the entire amount, and subsequently James R. Palmer reimbursed him for half of it, and at that time the credit was indorsed. The note was filed for allowance August 5, 1902. Notice of its...