Dawson v. Wombles

• Citation: 86 S.W. 271,111 Mo.App. 532
• Parties: DAWSON, Respondent, v. WOMBLES, Appellant
• Decision Date: 21 March 1905
• Court: Court of Appeal of Missouri (US)

86 S.W. 271

111 Mo.App. 532

DAWSON, Respondent, v. WOMBLES, Appellant

Court of Appeals of Missouri, St. Louis

March 21, 1905

Appeal from Lincoln Circuit.--Hon. Houston W. Johnson, Judge.

REVERSED AND REMANDED.

STATEMENT.

This case has been here before and is reported. (Dawson v Wombles, 104 Mo.App. 272). Defendant is the administrator of James R. Palmer, deceased. The cause originated in the probate court of Lincoln county. Plaintiff filed for allowance against the estate of James R. Palmer deceased, her demand consisting of a promissory note dated July 2, 1887, for the sum of $ 515.50, payable one day after date, with interest at eight per cent per annum. The note was made payable to Nancy E. Palmer, and was signed by James R A. Palmer, X (his mark) and attested by John W. M. Palmer. On the back thereof is the following assignments: "I sign the within note for value received to Jennie L. Palmer. Signed Nancy E. Palmer, X (her mark) attested by J. W. M Palmer and J. S. Williams." There is also a credit on the back of said note as follows: "Received on the within note $ 22, September 5, 1893."

A trial was had thereon in the probate court and the finding was for the defendant administrator. Plaintiff appealed to the circuit court. On the trial in the circuit court the execution of the note sued on was not denied under oath, in fact it was not denied at all.

The plaintiff introduced as a witness John W. M. Palmer, who testified that the plaintiff, Jennie L. Dawson, is his daughter and was formerly Jennie L. Palmer, the assignee mentioned in the assignment on said note; that James R Palmer, deceased, the maker of the note, was his brother, and Nancy E. Palmer, the payee in said note, was the mother of himself and the maker, James R. Palmer; that his mother formerly lived with him and owned a number of head of cattle, but he finally left the farm and moved to Louisiana and his mother went to live with the other son, James R., now deceased; that James R. was not able to keep the cattle for the mother as he had done, therefore, she sold them to James R. on account, which ran on for several years; that finally James R. and his wife separated and about the same time his mother became an invalid and was a great care, could not help herself in bed, and it was necessary to make other arrangements about taking care of her. Witness then returned to his farm, moved his mother there, brought his daughter, the present owner of the note, out to the farm to take care of her grandmother. The daughter put off her marriage in order to care for the old lady. At this time his mother and James R. had a settlement. Witness went over their accounts for them at their request as neither could read or write. The face of the note was the amount found due the mother. He wrote up the note and signed James R. Palmer's name to it at his request, and James R. made his mark, which the witness attested. Afterwards, witness' mother concluded as his daughter was taking care of her in her last days, she ought to have the little she had so she gave her this note. Witness further said: "At my mother's request I wrote the assignment on the note to my daughter and signed her name to it, she making her mark. It was attested by myself and J. S. Williams. After my mother died, I paid the funeral expenses. James R. agreed he would pay one-half but did not do it, finally I spoke to him about it one time and he said he would do it if he could have credit on the note for the amount so paid. I spoke to my daughter about it and she consented to it. He then paid me some money and a load of corn, in all $ 22 and at his request, with my daughter's consent, I credited the $ 22 on the note as a payment. I kept the note in my possession all the time. My daughter married shortly after the assignment of the note to her and the note remained in my possession. She never did have possession of it nor did her husband. It remained with me until after my brother's (James R. Palmer's) death. I had control of it up to the time I delivered it to Mr. Dawson, my daughter's husband, about a year after my brother's death." Witness also said that it was the desire of his mother that James R. should not be pushed on the note until it became more convenient for him to pay it. In connection with this evidence, plaintiff introduced the note.

The case was tried to a jury. It is somewhat difficult to arrive at the theory of the defense in the first instance; it finally shifted around to that of payment, however. The evidence seems to be in scraps, as is likely in cases of this nature, where one party is dead and his administrator and attorney are making the best fight possible with limited information as to the facts arising out of the circumstances of the case. It seems that an effort was made to show that the note was made at the time James R. Palmer's wife left him, and a deed of trust therewith, in order to cover up his property and was for that reason without consideration, but this was not shown and was not pressed very far. Then an attempt was made to contradict plaintiff's witness by showing by neighbors that the old lady was not reported to own any property at the time the cattle transaction was mentioned, and that none of them ever heard of her holding a note against James R. Palmer. This, on objection, was of course excluded by the court. Finally for the purpose of showing payment, defendant sought to introduce in evidence a deed of trust dated December 17, 1888, by James R. Palmer to B. N. Vance, trustee, for J. W. M. Palmer, William Palmer and Jennie L. Palmer, in amount $ 1080.50, covering certain lands, crops, farm machinery, horses, cattle, etc., and securing the payment of three notes therein mentioned; one of even date therewith to J. W. M. Palmer for $ 325, one of date July 2, 1887, to William Palmer for $ 248, and one of date July 2, 1887, payable to Nancy E. Palmer for $ 515.50, all of said notes being due one day after date and with eight per cent interest from date; also the deed record showing said deed was recorded in deed of trust record book 23, page 540, in Lincoln county, and the following marginal indorsement on said record showing release of said deed of trust: "The deed mentioned in the within instrument of writing has been fully paid and discharged. I hereby acknowledge satisfaction in full and release the property herein conveyed from the lien and incumbrance thereof this thirteenth day of January, 1889. Signed J. W. M. Palmer, beneficiary. Attest, J. H. Alexander, recorder of deeds." In connection with this offer of testimony defendant recalled J. W. M. Palmer and he testified that the signature on said marginal release was his proper signature, that he wrote it there; that James R. Palmer gave the deed of trust securing the note involved in this suit with the other notes and that the note in suit is the third, or five hundred and fifteen dollars and fifty cent note therein mentioned. In the controversy arising over said offer, defendant's counsel clearly indicated the purpose of said offer and his theory as follows: "Mr. Avery. I say the whole evidence shows that J. W. M. Palmer was the agent of his daughter up until 1891, and that she never had possession of the note. It seems that he took this deed of trust securing the payment of this note and the record itself shows the payment of the note. This is the same note sued on and there is the acknowledgment of satisfaction over his signature in which he says it is fully paid and discharged. It is clearly competent." The court sustained an objection and excluded the offer with the remark: "I do not think he could bind the other parties." To which ruling defendant excepted.

The defendant asked several instructions, all of which the court refused. Plaintiff requested and the court gave the following instruction in her behalf:

"The court instructs the jury that under the pleadings and the evidence in the case there is no defense to the note sued on and that your finding must be for the plaintiff in the sum of $ 515.50 together with eight per cent interest per annum thereon from the third day of July, 1887, less a credit of $ 22 bearing date September 5, 1893, making a total of $ 1184.47."

Defendant excepted to the giving of the above instruction at the time. The record then shows that "thereupon the court prepared and submitted to the jury the following verdict: 'We, the jury, find for the plaintiff and we assess the amount of her recovery at the sum of $ 1184.47."' The court designated J. M. Simpson, one of the jurymen, as foreman of the jury, and then and there directed him to sign said verdict, which said Simpson did in obedience to the direction of the court without any calculation being made by him or any other member of the jury and said verdict was thereupon returned as the verdict of the jury; to all of which defendant excepted at the time. Judgment was entered thereon for the plaintiff, and after unsuccessful motions for new trial and in arrest, the case comes here by appeal.

Judgment reversed and cause remanded.

W. A. Dudley and Norton, Avery & Young for appellant.

(1) While the release is not in strict conformity to the law then in force, Laws 1887, p. 234, it was still a valid release prima facie, in view of the testimony of J. W. M. Palmer and the facts in evidence in this case. J. W. M. Palmer was certainly prima facie agent for Jennie L Dawson, plaintiff. Beacham on agency, sec. 373; 7 Cyc. Title, Commercal Paper, page 1031, Para, "B," and note 59; Ferneau v. Whitford, 39 Mo.App. 310; Cummins v. Herd, 49 Ark. 139; Sharpe v. Knox, 49 Mo.App. 169; Hoppe v. Sailor, 53 Mo.App. 4; Ingalls v. Everett, 34 Mo.App. 371.

(2) There certainly can be no contention but that the judge of the court exceeded...