Ferguson v. Davidson

• Decision Date: 15 February 1899
• Citation: 49 S.W. 859,147 Mo. 664
• Parties: FERGUSON et al. v. DAVIDSON et al.
• Court: Missouri Supreme Court

49 S.W. 859

147 Mo. 664

FERGUSON et al. v. DAVIDSON et al.

Supreme Court of Missouri, Division No. 1.

February 15, 1899.

EVIDENCE — ASSIGNMENTS — ACCOUNT STATED — QUESTIONS FOR JURY — PLEADING — TRIAL.

1. The offer to transfer a mortgage in payment of a debt is not an offer to compromise, so as to be inadmissible in evidence, in the absence of any such suggestion.

2. A debtor who pays the debt to the original creditor, after notice of an assignment of

the debt, is not absolved from liability to the assignee.

3. An assignee of a debt who sues the estate of the debtor thereon cannot testify to conversations in regard thereto with the debtor, since deceased.

4. In an action by an assignee of a debt against the representatives of the deceased debtor, defendants, under a plea of settlement, produced the debtor's books, which had been verified as correct by the creditor. The alleged settlement consisted of dates, names, and figures arranged in ledger style, none of which were self-explanatory, and which did not show what transactions it covered. Defendants attempted to show by parol that the settlement covered the debt sued on. Held, that whether the settlement covered the debt was for the jury.

5. Failure to reply cannot be taken advantage of at the close of a trial.

6. The testimony of a witness should not be withdrawn from the jury, where only a part of it is incompetent.

Appeal from circuit court, Butler county; John G. Wear, Judge.

Action by William Ferguson and George B. Wheeler against Mary J. Davidson and others. From a judgment on a verdict directed for defendants, plaintiffs appeal. Reversed.

This suit was begun by plaintiffs against Isaac M. Davidson, deceased, in his lifetime, and, he having died while it was pending, it was revived and prosecuted against his personal representatives, Mary J. Davidson, executrix, and Ira M. Davidson, executor, of his last will. The amended petition on which the case was tried is in two counts. The first stated, in substance, that Isaac M. Davidson, on December 12, 1893, was indebted to one T. N. Caldwell in the sum of $1,000, for work and labor done by him, under contract with Davidson, for grading and building a retaining wall on Pine street, in the city of Poplar Bluff, and that Caldwell on that day, for a valuable consideration, assigned in writing the debt to plaintiffs. The second count stated, in substance, that on July 8, 1893, Davidson was indebted to Caldwell in $2,000, for work done by him under contract with Davidson in grading Poplar street, in same city, and on that date, for value, assigned in writing the debt to plaintiffs. Judgment was prayed in each count accordingly. The answer of the executrix and executor to the first count denied that their testator was indebted as charged on the day named, and averred that prior to that date he had paid Caldwell all money he owed him for the work in that count specified; and in their answer to the second count they denied that their testator owed the debt named, and averred that prior to his death and before he had any notice of the alleged assignment, he had settled the matter with Caldwell, and paid him all that was due him. There seems to have been no reply to the new matter in the answers. The cause came on for trial before the court and a jury. The plaintiffs introduced evidence tending to prove the statements in their petition, and the defendants introduced evidence tending to prove the payment and settlement pleaded in their answers. Upon the close of all the evidence, the court instructed the jury that, under the pleadings and evidence introduced, the plaintiffs were not entitled to recover, and their verdict must be for defendants. The court at the same time refused several instructions asked by the plaintiffs. The jury found a verdict for the defendants, as the court instructed. In due time plaintiffs filed a motion for a new trial, which was overruled, when they filed their bill of exceptions and took this appeal.

Geo. L. Edwards, for appellants. Henry N. Phillips and C. L. Keaton, for respondents.

VALLIANT, J. (after stating the facts).

The ground on which the trial court based its peremptory instruction is not very apparent from the record, but it must have been because the court was of the opinion either that plaintiffs' evidence did not tend to prove the allegations of the petition, or that the testimony for defendants conclusively established their pleas of payment, or because there was no reply to the affirmative pleas. In no phase of the case, however, as presented by the record, was the peremptory instruction justified.

1. The documentary evidence introduced by plaintiffs tended to prove the contracts of Davidson with the city, and the rates of prices and the amount of work done under each contract. The testimony of Orchard tended to prove that the agreement between Davidson and Caldwell was that the former was to pay the latter 70 per cent. of what Davidson received in tax bills from the city; also that Caldwell did the work. The testimony of plaintiffs and defendants alike agreed that Caldwell did the work. The written assignments of Caldwell to the plaintiffs, as stated in the petition, were in evidence. The testimony of Edwards tended to prove that Davidson, as early as July 18, 1893, had notice of the assignment of July 8th. The court, of its own motion, struck out part of this witness' testimony, on the ground that it tended to disclose what was said by Davidson in an effort to compromise. But the court mistook the tendency of that testimony. There was no suggestion of a compromise. The testimony was only to the effect that Davidson offered to transfer to plaintiffs a mortgage he held in payment of the claim, which offer was refused. It was error to have excluded that testimony. The testimony of this witness also tended to prove that a $2,000 note, referred to in defendants' testimony, was paid on another account than the claims in suit. The testimony of Roth disclosed a transaction and conversation between Davidson and the witness, which, in connection with the other evidence of the plaintiffs, would tend to show that Davidson had notice of the alleged assignments to plaintiffs. This...