Hair v. Edwards

• Decision Date: 04 January 1904
• Citation: 77 S.W. 1089,104 Mo.App. 213
• Parties: ISABELLA HAIR, Executrix, etc., Appellant, v. R. J. EDWARDS et al., Respondents
• Court: Kansas Court of Appeals

77 S.W. 1089

104 Mo.App. 213

ISABELLA HAIR, Executrix, etc., Appellant, v. R. J. EDWARDS et al., Respondents

Court of Appeals of Missouri, Kansas City

January 4, 1904

Appeal from Linn Circuit Court.--Hon. John P. Butler, Judge.

AFFIRMED.

Cause affirmed.

West & Bresnehen for appellant.

(1) The note in suit was produced in evidence by the executrix of R M. Hair, from which fact it may fairly be inferred that the note belonged to R. M. Hair at the time of his death. (2) Evidences of debt of all kinds, found in the possession of a decedent at the time of his death, raise the presumption that the decedent was the owner of such evidences of debt at the time of his death. 11 Ency. L. (2 Ed.), p. 829, footnote 1; Robbins v. Robbins (Ky. 1886), 1 S.W. 152; Karsch's Estate, 133 Pa. St. 84, 153 Pa. St. 397, 32 W N. C. (Pa.) 173. (3) Aside from all inferences and presumptions of law, the evidence in this case shows, as a matter of fact, that R. M. Hair, deceased, was the owner and holder of the note at the time of his death, and that the respondent, Edwards, so regarded and treated him.

A. L Pratt and Burns & Burns for respondent.

(1) The possession of a note, not payable to bearer, nor indorsed in blank by a third person, is not even prima facie evidence of ownership. A. J. Dorn v. Sarah Parsons, 156 Mo 601-602; Cavitt v. Tharp, 30 Mo.App. 131-135; State v. Stebbins, 132 Mo. 337-338; Tiedeman on Commercial Paper, sec. 303; 1 Daniel on Negotiable instruments (3 Ed.), p. 517, sec. 574; p. 591, sec. 664a, and p. 686, sec. 741; 17 L. R. A., p. 327, footnote; Richardson v. Drug Co., 92 Mo.App. 526; Rice v. McFarland, 41 Mo.App. 489; Bowers v. Johnson, 49 N.Y. 435.

OPINION

BROADDUS, J.

This suit was begun in a justice's court where it was tried and appealed to the circuit court, where it was again tried; and the judgment being against the plaintiff she appealed to this court.

The action is founded upon a negotiable promissory note executed by defendants and made payable to one J. M. Johnson, dated March 15, 1901, and payable in thirty days after date. There is no indorsement of the note and no written transfer of any kind to R. M. Hair, the plaintiff's testator who died in November of said year. It was shown at the trial that the note in question was delivered by the executrix to T. M. Bresnehen, her attorney, for collection, but there is no direct evidence that Hair died with it in his possession; however it may be reasonably inferred from all the testimony that such was the fact.

N. E. Wannamaker testified as follows: "I was one of the appraisers and clerk of the appraiser at the time the inventory of the estate of Richard Hair was taken. After that time, I think I was representing the plaintiff as executrix of her husband's estate with reference to the collection of this note, and all of the notes. I interviewed the defendant Edwards with reference to the note in controversy sometime along in February. I was in Mr. Brinkley's office and Mr. Edwards was there. I told him, Mr. Edwards, that Mrs. Hair had asked me to ask him when he would pay that note and he said that he was pushed now and that it would not be convenient for him to pay it now, but long about the first of June he said he would begin paying the note about $ 40 per month until it was paid. In about a month or two afterwards I met Mr. Edwards and he said: 'I made payments on that note, I hold receipts for payment on that note.' He walked with me up to Mrs. Hair's house. Mrs. Hair and Mr. Hays, were there; he showed them this receipt. He said he got the receipt from R. M. Hair. He also said: 'I hold two other receipts which I have not with me.' He said Mr. Hair had brought a man and introduced him as J. M. Johnson and those receipts were obtained from that man and he wanted credits for those receipts. He did not make any objection to paying the balance, simply claimed to have some receipts." Wannamaker further testified that he did not have the note at the time of said conversation and the same was not exhibited to defendants. Edwards also told Davis Hays about three months prior to the death of Hair that he still owed him about $ 173 or $ 175 on the note.

At the conclusion of plaintiff's testimony the jury at the direction of the court returned a verdict for the defendants.

The declaration of one of the defendants to witness Hays before the death of Hair that he owed Hair the note and to witness Wannamaker that he would pay the note, less certain credits which he claimed, were scarcely evidence of ownership. They were more in the nature of admissions of the debt. Such declarations would not be evidence in a controversy between plaintiff and Johnson the payee of the note as to the question of ownership. And the statement of defendant that Hair in his lifetime brought a man and introduced him as J M. Johnson, who gave his receipts for payments made, is as consistent...