Doherty v. Doherty
| Decision Date | 21 February 1911 |
| Parties | CELIA E. DOHERTY, Appellant, v. CHARLES DOHERTY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. George H. Williams Judge.
Judgment affirmed.
S. C Rogers for appellant.
(1) The court erred in refusing to admit in evidence appellants' exhibits A, B, C, D, E and F, the bills received for the goods at time of purchase by appellant, and exhibit H, the receipt for the horse in evidence. Wells v. Hobson, 91 Mo.App. 379; Nelson v. Nelson, 90 Mo. 460; Milling Co. v. Walsh, 108 Mo. 277; Briggs v Henderson, 49 Mo. 531; Bettes v. Magoon, 85 Mo. 580; Dreyer v. Dieckman, 131 Mo.App. 660. (2) The court erred in refusing to give the instruction as offered by appellant, and in giving same as modified by the court, and known as No. 5 given. R. S. 1909, sec. 8309; Ilgenfritz v. Ilgenfritz, 49 Mo.App. 127; Gilliland v. Gilliland, 96 Mo. 522; Schooler v. Schooler, 18 Mo.App. 69; State ex rel. v. Jones, 83 Mo.App. 151; Hurt v. Cook, 151 Mo. 416; Grocer Co. v. Ballenger, 137 Mo. 369; Abbott v. Trust Co., 130 S.W. 1120; Johnson v. Johnson, 173 Mo. 91; Sanguinett v. Webster, 127 Mo. 32; Siling v. Hendrickson, 193 Mo. 365; Bettes v. Magoon, 85 Mo. 580; Winn v. Riley, 151 Mo. 61; White v. Clasby, 101 Mo. 162; Rice, Stix & Co. v. Sally, 176 Mo. 107. (3) The court erred in permitting counsel for respondent to make prejudicial statements in the presence and hearing of the jury over the objection and exception of appellant. Rice, Stix & Co. v. Sally, 176 Mo. 148; Haynes v. Town of Trenton, 108 Mo. 123; Mason v. Fourteen Min. Co., 82 Mo.App. 371.
Frank H. Braden and John A. Talty for respondent.
(1) The books themselves might have been competent evidence, and upon proof that they were destroyed or beyond the jurisdiction of the trial court, verified or other copies might have been admitted, although that question does not arise here, as neither one was offered or accounted for. Wright v. Railroad, 118 Mo.App. 392; 1 Greenleaf Ev., pp. 563 and 563e. Afflick v. Streeter, 136 Mo.App. 719. (2) Counsel for respondent did not make prejudicial statements in the presence and hearing of the jury during the trial. It was our duty, being met with an objection, to show and state to the court what we expected to prove, otherwise the "appellate court could not determine its materiality" in the event we had to appeal. McCormick v. City of St. Louis, 166 Mo. 315; McFern v. Gardner, 121 Mo.App. 1.
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 well-known 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 tending to prove her title to the household goods involved but we believe there was no error in excluding them on the ground that the books were the best evidence. Such bills purporting to be copies from the books are of course secondary evidence of the facts therein recited and the books themselves were within the jurisdiction of the court. This being true, they were properly excluded, for the reason the books were the best evidence and should have been produced, if it were desired to show from them that plaintiff purchased the property. Such books are competent, either when attested by the oath of the party who has knowledge of the facts they evince, or as of the res gestac , under an exception to the rule against hearsay, without such proof, if the entries therein are shown to have been made contemporaneously with the purchases, in the usual course of business; but copies are not compatent when the books are convenient, as here. To render such statements copied therefrom competent in the circumstances stated, the loss or destruction of the books or their otherwise being unavailable after diligent effort should be shown. [Anchor Milling Co. v. Walsh, 108 Mo. 277, 18 S.W. 904.] Such papers purporting to be statements copied from the books are self-serving and may be concocted, while the books themselves are authentic. And it is because of this the law requires the best evidence accessible. It is clear that such bills are incompetent in the circumstances of the case where the books and probably the saleman himself or the person who made the original entries is available. [Wright v. C. B. & Q. R. Co., 118 Mo.App. 392, 94 S.W. 555; 1 Greenleaf on Evidence (16 Ed.), secs. 563a and 563e.]
One of these bills was marked paid and signed by the Georgia- Stimson Company and this fact, of course, characterizes it as a receipt for the amounts set opposite the several items of furniture therein indicated. This, too, was rejected by the court over plaintiff's exception when offered in proof and the same action was had with reference to a receipt signed by the party from whom the horse involved was purchased. The receipt as to the horse...
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