Ess v. Griffith
| Decision Date | 25 May 1897 |
| Parties | Ess, Administrator, Appellant, v. Griffith et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.
Affirmed.
Teasdale Ingraham & Cowherd and Leon Block for appellant.
(1) The court erred in permitting the defendant, Pierce, to testify as to the alleged conversations between said Pierce and the deceased, Fowler. R. S. 1889, sec. 8918; Messimer v McCray, 113 Mo. 382; Leach v. McFadden, 110 Mo 584; Williams v. Edwards, 94 Mo. 447; Nichols v. Jones, 32 Mo.App. 657; Meier v. Thieman, 90 Mo. 433; Greenleaf on Evidence, secs. 394, 397, 398 and 417. (2) The trial court based its ruling upon the case of Tomlinson v. Ellison, 104 Mo. 105, but we respectfully submit that that portion of the decision in that case which states that by the mere taking of a deposition of the opposing party the administrator waives the statute, was a mere obiter dictum and not necessary to a decision of that case; and we further submit that where, as in this case, the administrator announces at the trial that he does not intend to use said deposition in any way, that the mere taking of the deposition does not amount to a waiver of the incompetency of the opposite party. Gurley v. Clarkson, 30 S.W. 360; Phillips v. Thompson, 1 Joh. Ch. 131; Conway v. Turner, 8 Ark. 356; Kidder v. Barr, 35 N.H. 252; Bogie v. Nolan, 96 Mo. 85; Leeper v. Taylor, 111 Mo. 312; House v. Camp, 32 Ala. 542; Crary v. Sprague, 12 Wend. 41; Monroe v. Napier, 52 Ga. 388; Trow v. Shannon, 8 Daly, 239; Jamison v. Bagot, 106 Mo. 240; Messimer v. McCray, 113 Mo. 382. (3) Our courts have repeatedly decided that our statute, which allows a party to take the deposition of the opposite party, takes the place of a bill of discovery. Eck v. Hatcher, 58 Mo. 235; Larimore v. Bobb, 114 Mo. 446; Carr v. Dawes, 46 Mo.App. 351. The bill of discovery under the old practice did not make a party a competent witness who was not a competent witness without such bill. Phillips v. Thompson, supra; Conway v. Turner, 8 Ark. 356; Kidder v. Barr, 35 N.H. 235; Watson v. Race, 46 Mo.App. 552; Jamison v. Bagot, 106 Mo. 257; House v. Camp, 32 Ala. 542; Crary v. Sprague, 12 Wendell, 41; Cansler v. Wharton, 62 Ala. 365; Monroe v. Napier, 52 Ga. 385; Hewlet v. George, 68 Miss. 703. (4) Where no testimony of a deceased party to a suit is before the court, testimony of the opposing party is inadmissible. Corby v. Wright, 9 Mo.App. 5; Park v. Lock, 48 Ark. 133; Shober v. Wheeler, 113 N.C. 370; Lee's Adm'r v. Hill, 87 Va. 497; Levy v. Dwight, 12 Colo. 101; Moore v. Palmer, 14 Wash. 134. (5) The court erred in admitting the evidence of Pierce in regard to the alleged estoppel relied upon by defendants, because such estoppel was not pleaded by such defendants. Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235; Hammerslough v. Cheatham, 84 Mo. 13; Avery v. Railroad, 113 Mo. 561. (6) The court erred in admitting the evidence of witnesses Potter, Downs and Wittie as to statements alleged to have been made by Montgomery while the latter was in possession of the property, to the effect that the property was unincumbered, and that he was the absolute owner thereof. These statements were not made in the presence of Fowler and should not have been admitted. Criddle v. Criddle, 21 Mo. 522; Morey v. Staley, 54 Mo. 419; Blount v. Hamey, 43 Mo.App. 644.
Elijah Robinson and Frank P. Sebree for respondents.
(1) The fact that plaintiff had taken the deposition of Pierce in this action amounted to a waiver of any alleged incompetency on his part, and this waiver having been shown to the court, the ruling admitting the testimony was proper. Tomlinson v. Ellison, 104 Mo. 105; Weeks on Depositions, p. 503, sec. 436; Rapalje Law of Witnesses, sec. 178; 3 Greenleaf on Evidence, sec. 326; 29 Am. and Eng. Ency. Law, 749; Thomas v. Irvin, 90 Tenn. 512; Weil v. Silverstone, 6 Bush (Ky.), 698; Brooks v. Crosby, 22 Cal. 43; Jones v. Love, 9 Cal. 68; Gilbert v. Swain, 36 N.E. 374; In re Corsons Estate, 24 N.E. 588. (2) The plaintiff and his counsel, with knowledge of the status of the witness, allowed him to be sworn at the trial and to testify to material and important facts in the case before interposing the objection. They thereby waived the right to make such objection. Hickman v. Green, 123 Mo. 165; Patterson v. Wallace, 44 Pa. St. 88; Milsap v. Stone, 2 Colo. 137; Groshon v. Thomas, 20 Md. 234; Donelson v. Taylor, 8 Pick. (Mass.) 390; 1 Greenleaf, Evidence, sec. 421. (3) The object of a law disqualifying a party as a witness, where the other party to the transaction in question is dead, was to prevent the living party from testifying at his own instance, on the theory that his testimony would be unfair and partial to himself. But the law was not intended to deprive the administrator of the testimony of the adverse living party in case the administrator desires such testimony. The defendant Pierce was compelled to give his deposition when called upon to do so by plaintiff, and the deposition so given and filed in the cause was for the use of either party to the suit. Watson v. Race, 46 Mo.App. 546. The defendant could have used Pierce's deposition, had he been absent from the trial. (4) The defendants were not informed by the petition that plaintiff would rely upon the mortgage for his title, and had no opportunity to plead an estoppel, and were not required to do so. Hence plaintiff's objection to the testimony of defendant Pierce, on the ground that it proved an estoppel, and no estoppel was pleaded by defendants, was not well taken. Tyler v. Hall, 106 Mo. 313; Alexander v. Campbell, 74 Mo. 143. (5) The objections of plaintiff to the testimony of the witnesses, Potter, Downs and Wittie, will, when examined, be found to possess no merit, because harmless, and was not offered to assail the mortgage of plaintiff's intestate. (6) Even if the plaintiff's contention as to the admission of the testimony of Pierce, one of the defendants, were well taken, still the judgment should be affirmed, because it was for the right party, and the only judgment which could, under the evidence in the case, have been properly rendered. Bushey v. Glenn, 107 Mo. 331; Wolff v. Campbell, 110 Mo. 114; De Hatre v. De Hatre, 50 Mo.App. 1; McDaniel v. Harvey, 51 Mo.App. 198; Long v. Bolen Coal Co., 56 Mo.App. 605; Williams v. Mitchell, 112 Mo. 300; Walsh v. St. Louis, etc., Ass'n, 101 Mo. 544. (7) The sale by Fowler to Montgomery, foreclosing the title of Reber, accompanied by a delivery of possession to Montgomery, the purchaser, passed the title to him. No bill of sale was necessary, although the evidence shows that a bill of sale was given. Cobbey on Chat. Mort., sec. 942; Conger v. Robinson, 4 Smedes and M. 210. (8) The Great Western Type Foundry was a bona fide purchaser, without notice from Griffith, who was in possession under his chattel mortgage and under the foreclosure sale, and was not required to inquire whether there was a private arrangement between Fowler and Montgomery. Cobbey on Chat. Mort., sec. 942; Wilder v. Crane, 53 Ill. 490. (9) Counsel for appellant have placed great stress on the fact that the mortgage made by Clark to Fowler was not acknowledged satisfied. That was not required to be done. If Fowler had acknowledged satisfaction of the mortgage, he would have destroyed Montgomery's title to the property. Lanier v. McIntosh, 117 Mo. 508.
Plaintiff, as administrator of Charles T. Fowler, sued defendants Griffith, the Great Western Type Foundry and S. A. Pierce for the conversion of certain printing presses, type, etc., claimed as the property of plaintiff's intestate. Several trials have occurred in the circuit court, and this is the second appeal. The first will be found reported in 128 Mo. 50, 30 S.W. 343, where a full statement of facts will be found. On the first appeal the judgment was reversed and a new trial was ordered. The retrial resulted in a verdict and judgment for defendant and the plaintiff appealed.
We briefly restate the facts. In 1885 one Clark, being the owner of the property, mortgaged it to Fowler, plaintiff's intestate, to secure a note for $ 3,000. Clark sold the property to one Reber, subject to the mortgage, to whom it belonged in April, 1889. In January, 1889, Fowler took possession of the property under his mortgage, and on the twenty-third of that month made a written contract for the sale of it to W. J. A. Montgomery. On the twenty-sixth of January, 1889, Montgomery mortgaged it to Griffith to secure a note for $ 1,050. April 6, 1889, the property was sold publicly under the Clark mortgage to Montgomery. This sale was made in order to carry out the previous private sale. The purchase price was not paid, but the parties agreed, as the evidence tends to prove, to keep the Clark mortgage alive in order to secure the purchase money. Montgomery was put in possession of the property, and removed it to another building in Kansas City, and made the ordinary use of it. On April 9, Montgomery mortgaged the property to one E. H. Wittie, to secure a debt due him. This mortgage was subsequently assigned to Griffith.
Under the powers contained in his own and the Wittie mortgages, Griffith sold the property to defendant Pierce, who was the agent of, and acted for, the defendant type foundry, which disposed of it in the usual course of business.
The petition charges a conversion of the property. The answer is a general denial.
The issue tried was whether the Clark mortgage was kept in force by the arrangement between Fowler (plaintiff's intestate) and Montgomery, so as to take precedence over the mortgages under which Griffith...
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