Gammon v. McDowell

• Decision Date: 05 December 1921
• Docket Number: No. 2932.,2932.
• Citation: 208 Mo. App. 616,235 S.W. 461
• Parties: GAMMON v. McDOWELL
• Court: Missouri Court of Appeals

235 S.W. 461

208 Mo. App. 616

GAMMON v. McDOWELL

No. 2932.

Springfield Court of Appeals. Missouri.

December 5, 1921.

Appeal from Circuit Court, Dallas County; C. H. Skinker, Judge.

Proceedings for allowance of claim of T. M. Gammon against the estate of A. Clayton, deceased. From a judgment allowing claim J. C. McDowell, executor, appeals. Affirmed.

Levi Engle, of Buffalo, for appellant. John S. Haymes and D. M. Rush, both of Buffalo, for respondent.

COX, P. J.

The respondent filed in the probate court of Dallas county a claim against the estate of A. Clayton, deceased, for $304. This proceeding reached the circuit court of Dallas county, where on a trial before the court without a jury the issues were found in respondent's favor and judgment rendered against appellant for the amount asked.

The account filed is as follows:

                           "Buffalo, Mo. July 22, 1918
                 "In account to T. M. Gammon from A. Clayton
                           Dec. Estate, Dr
                

                Rent from March, 1904, to June 20, 1918, making
                  14 years' rent at $2.00 per month............... $336 00
                Credit to best of my judgment $2.00 per year         28 00
                                                                   _______
                                                                    308 00
                Also making 1 pair ...............................    4 00
                                                                   _______
                                                                   $304 00
                

—leaving a balance due, T. M. Gammon to this date."

The defendant filed a motion in the circuit court to require the respondent to make his account more definite and certain, which was overruled. This action of the court is assigned as error. The motion did not specify in what particular the account should be made more specific, and, from the record in this case; it does not appear that appellant could have been injured by the court's action; hence, if its action was erroneous, the error was harmless.

At the trial, a receipt for certain money paid by deceased to respondent was offered by appellant This receipt did not show on what account the money was paid, but did show that the transaction was between deceased and a son of respondent as his agent. This agent was permitted over the objection of appellant to testify that the receipt was for money paid on another matter. This is assigned as error on the ground that since Clayton was dead, the agent of respondent with whom the transaction was had by deceased was disqualified by section 5410, Rev. Stat. 1919, as a witness in relation to that matter. It has been held in a number of cases in this state that when one of the parties to a transaction is represented by an agent, then on the death of the other party the agent becomes disqualified by reason of the statute from testifying in relation thereto; but the Supreme Court, by which we are bound, held otherwise in the case of Wagner v. Binder (Sup.) 187 S. W. 1128, loc. cit. 1151-1158, and overruled the former cases, which hold that under such circumstances the agent was disqualified. That case is binding on us, and this point must be ruled against appellant.

Appellant asked certain witnesses to state the general reputation of deceased as to promptness in paying his debts. Objections to these questions were sustained. No statement of what the expected answers would be was made, and, since the questions did not in themselves indicate what the answer would be, it is impossible for this court to determine whether or not the answers, if given, would have been beneficial to appellant. Under such circumstances, the appellate court will not review the action of the trial court in sustaining the objections to the questions. McCormick v. St. Louis, 166 Mo. 315, 338, 65 S. W. 1038; Emerson-Brantingham Imp. Co. v. Simpson, 205 Mo. App. 56, 217 S. W. 562; McFern v. Gardner, 121 Mo. App. 1, loc. cit. 13-14, 97 S. W. 972.

Appellant asked an instruction to the effect that all the rent which accrued more than five years before Clayton's death was barred by the statute of limitation. This was refused. The contention of appellant is that the rent accrued each month, and therefore a cause of action arose at the end of each month, and that the accruing rent from month to month did not constitute a mutual account so that the last item...