Doherty v. Doherty

• Decision Date: 21 February 1911
• Parties: DOHERTY v. DOHERTY.
• Court: Missouri Court of Appeals

134 S.W. 1112

155 Mo. A. 481

DOHERTY v. DOHERTY.

St. Louis Court of Appeals. Missouri.

February 21, 1911.

Rehearing Denied March 7, 1911.

1. EVIDENCE (§ 174)—BEST AND SECONDARY EVIDENCE—BILLS FROM BOOKS OF ACCOUNT.

Bills purporting to be an itemized statement of goods purchased, which were copied from books of account that are within the jurisdiction and can be produced, are not admissible to prove the purchase, for the books are the best evidence.

2. EVIDENCE (§ 376) — DOCUMENTARY EVIDENCE —BOOKS OF ACCOUNT.

Books of account showing purchase of goods are competent evidence to prove the purchase, either when attested by the oath of the party who has knowledge of the facts they evince, or without such attestation, as a part of res gestæ.

3. EVIDENCE (§ 318) — DOCUMENTARY EVIDENCE —PRIVATE MEMORANDUM—RECEIPTS.

Against a stranger a receipt is not competent evidence of the payment therein acknowledged, being a mere hearsay declaration of the party who signed it.

4. APPEAL AND ERROR (§ 1170)—REVIEW— HARMLESS ERROR—INSTRUCTIONS.

In view of Rev. St. 1909, § 1850, providing that no judgment shall be reversed for an immaterial error, and a similar provision in Rev. St. 1909, § 2082, it was harmless error, in an action between a former husband and wife to recover certain property, to strike out of an instruction, which correctly declared the law as to the rights of the husband in his wife's property, a clause that there was no evidence that the wife consented to her husband having any interest in her property, where it was obvious to the jury that there was no such issue or evidence.

5. TRIAL (§ 267)—INSTRUCTIONS—REQUESTS —MODIFICATION.

In replevin between parties who were formerly husband and wife, where the issue was whether certain property had been bought by the wife with her money or whether the husband had purchased it, a requested instruction as to the rights of a husband in his wife's property was unnecessary; and hence it was not erroneous to modify such an instruction.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by Celia E. Doherty against Charles Doherty. From a judgment for defendant, plaintiff appeals. Affirmed.

S. C. Rogers, for appellant. Frank H. Braden and John A. Talty, for respondent.

NORTONI, J.

This is a suit in replevin. The finding and judgment were for defendant, and plaintiff prosecutes the appeal.

It appears the parties were formerly husband and wife, but the marriage relation was dissolved by a decree of divorce recently, before the institution of this suit in replevin. The subject-matter of the controversy is the household furniture and a horse, which the parties jointly used during the last four years of their married life. At the time the suit was instituted, the household furniture and horse were in possession of defendant, who was the prior husband, at the residence where they both formerly lived. Plaintiff, the former wife, asserts a claim to the property as owner, and as though she is entitled to the exclusive possession thereof. On the other hand, defendant insists the property belongs to him, because it was purchased with his money during their married life. The evidence tends to prove that defendant is a prosperous plumber, who has made considerable money through plying his trade, and plaintiff was employed by him as a stenographer about 1888 and 1889. In 1889, the parties were married, and both seem to have attended diligently to the matter of making money. While defendant prosecuted his trade, in which he employed a number of men, plaintiff kept several boarders in their home and attended to the household duties of the wife. Plaintiff's evidence tends to prove that she made money of her own by keeping boarders and accumulated some, too, from bad accounts which her husband gave to her for collecting. She says, too, on numerous occasions her husband, defendant, presented her with money, which she saved and accumulated through investments, etc. The parties formerly resided in Kansas City, but afterwards removed to St. Louis, where they commenced housekeeping. By the testimony of plaintiff, it appears she purchased the household furniture involved from Georgia-Stimson Company, a wellknown furniture house in St. Louis, and the horse from another person, and paid therefor with her own separate means, which she had accumulated as above stated. For defendant the evidence is that whatever means plaintiff had were furnished to her by him along at different times, not as gifts, but merely for the purpose of investment, and that all the furniture involved was purchased with his money. He says, too, that, though plaintiff purchased the furniture from Georgia-Stimson Company and the horse from another party, and made payment for the horse and for the major portion of the furniture, he made one payment of $500 on the furniture by his check, and this statement seems not to be seriously controverted. On the proof in the record, it may be said there is an abundance of evidence tending to establish plaintiff's right of recovery, as though she purchased the property sued for with her own means and therefore owned it; and there is an abundance of evidence, as well, in support of defendant's claim that, though plaintiff purchased the furniture, she did it for him and with his means, and therefore he is the owner thereof. It is to be inferred from the proof that, while defendant was engaged in his business, plaintiff made such purchases as were needed by both parties and conducted matters of that character as if she were the head of the house, with his consent. The jury found the issue for defendant, as though he owned the property and had furnished the means to purchase it.

Plaintiff argues for a reversal of the judgment that the court erred in declining to permit her to introduce in evidence several bills of furniture made out in her name in 1904, and rendered to her by the Georgia-Stimson Company soon after the furniture was purchased. These bills purport to be copies from the books of the Georgia-Stimson Company, from whom the furniture was purchased in St. Louis, and are statements of the account of such purchases, item by item after the transactions took place. Plaintiff urges the court should have received them in evidence as...