Hamby v. Brooks

• Decision Date: 01 June 1908
• Citation: 111 S.W. 277
• Parties: HAMBY v. BROOKS.
• Court: Arkansas Supreme Court

111 S.W. 277

HAMBY v. BROOKS.

Supreme Court of Arkansas.

June 1, 1908.

Appeal from Circuit Court, Nevada County; J. M. Carter, Judge.

Action by Mae C. Brooks against C. C. Hamby, as administrator of the estate of J. T. Brooks, plaintiff's deceased husband. Judgment for plaintiff, and defendant appeals. Affirmed.

C. C. Hamby, for appellant. Roscoe R. Lynn, for appellee.

McCULLOCH, J.

Appellee, Mae C. Brooks, presented and filed her claim, on verified account, in the aggregate sum of $950, exclusive of interest, against the estate of her deceased husband, J. T. Brooks. The case was tried in the circuit court on appeal from the probate court, and, after all the testimony had been introduced, the court instructed the jury to return a verdict in her favor for the full amount claimed. Judgment was rendered accordingly, and the administrator appealed to this court.

The account sued on contained three separate items, as follows:

                1. Amount collected by J. T. Brooks
                    on 12 notes, executed by one
                    Bragle to plaintiff, and proceeds
                    used under promise to pay same
                    to plaintiff on demand ............   $600 00
                2. Amount paid by plaintiff for J. T
                    Brooks on life insurance premium
                    under promise to repay same to
                    plaintiff on demand ...............    225 00
                3. Amount, proceeds sale of horse belonging
                    to plaintiff, collected by J
                    T. Brooks under promise to repay
                    on demand .........................    125 00
                                                           ______
                       Total ..........................   $950 00
                

The undisputed evidence introduced established the claim. The defense offered by the administrator to the first item of the account was that the amount collected by Brooks was used by him in the purchase of a lot for his wife (appellee), and in building a house thereon, and to the second item that it was barred by the statute of limitations. The defense offered to the first item was, in effect, a plea of payment, and it devolved upon appellant to establish the defense by preponderance of the testimony. He assigns as error the exclusion of certain testimony of witnesses Regan, Hinton, and Carrington. The substance of the excluded testimony of Regan was a statement, made to him by Brooks at the time he purchased the notes in question from the latter, to the effect that he intended to use the proceeds of the notes in purchasing a lot from Hinton. The ex parte statements made by Brooks as to what he intended to do with the money, which the evidence shows he had promised to repay to appellee on demand, was not binding on her, and were not admissible as evidence in the case. It was purely hearsay and was properly excluded. Appellant offered to prove by Hinton that he sold a...