Hamra of Estate of Hamra v. Orten

• Decision Date: 18 June 1921
• Citation: 233 S.W. 495,208 Mo.App. 36
• Parties: MARY HAMRA, Administratrix of the estate of R. S. HAMRA, deceased, Appellant, v. JOHN ORTEN, Respondent
• Court: Missouri Court of Appeals

233 S.W. 495

208 Mo.App. 36

MARY HAMRA, Administratrix of the estate of R. S. HAMRA, deceased, Appellant, v. JOHN ORTEN, Respondent

Court of Appeals of Missouri, Springfield

June 18, 1921

Appeal from Pemiscot Circuit Court.--Hon. Sterling H. McCarty Judge.

AFFIRMED.

Judgment affirmed.

Corbett & Stiles for appellant.

"The instrument cannot be varied or contradicted under the guise of explanation or construction." 22 Corpus Juris, sec 1570, page 1177; Stonebraker v. Ford, 81 Mo. 532; Chrisman v. Hodges, 75 Mo. 413; Watkins Medical Co v. Holoway, 181 S.W. 602.

C. G. Sheppard for respondent.

(1) We admit defendant would not be competent as a witness to testify to any part of the transaction between he and Hamra, but as to matters that transpired after Hamra's death defendant is a competent witness. Weirer Mueller v. Scullin, 203 Mo. 466, 101 S.W. 1088; Kirton v. Bulls, 168 Mo. 622, 68 S.W. 927; Bates et al. v. Forcht et al., 89 Mo. 121. (2) Defendant was a competent witness as to matters transpiring since the death of R. S. Hamra; but should it be admitted that he was not a competent witness to the extent the court permitted him to testify, yet the objections of plaintiff were too broad and the court ruled correctly in overruling said objections. Elsea et al. v. Smith et al., 273 Mo. 396, 202 S.W. 1073; Burnes v. Polar Wave Ice & Fuel Co., 187 S.W. 145. (3) Statements made by a party either oral or written are always open to explanation, therefore the court did not err in permitting defendant to testify that the statements contained in the letter written by his little girl were incorrect and not the statements he told her to make. Stauper v. Hammond Packing Company, 180 S.W. 1074; Huff v. St. Joseph Railway, Light, Heat & Power Company, 213 Mo. 495; Downs v. Racine Battery Company, 175 Mo.App. 386.

BRADLEY, J. Cox, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

As the administratrix of the estate of R. S. Hamra, deceased, plaintiff commenced this cause in a justice of the peace court to recover on an account for merchandise alleged to be due plaintiff's intestate. The cause was appealed to the circuit court where upon trial before the court and a jury verdict and judgment went for defendant. Plaintiff failing to get a new trial appealed.

The statement filed in the justice court is in the usual form in a suit on account, and filed therewith was an itemized statement of the account showing charges and credits, leaving an alleged balance due of $ 225.92. No written answer was filed but the defense was payment.

Error is assigned in the admission of evidence and in the giving of an instruction. Because of the nature of the evidence the admission of which is challenged it will be necessary to set out the facts somewhat in detail. Deceased operated a store in Caruthersville at which defendant traded, and the account had run for several years. Plaintiff's intestate died February 2, 1920. Plaintiff introduced in evidence the account showing charges and credits, and balance due. The last credit appears under date of November 21, 1919, and is for $ 25 as shown on the books. Plaintiff also introduced in evidence a letter written by defendant to plaintiff under date of April 12, 1920, and a receipt given defendant for the payment of $ 25 on November 21st. This letter is as follows:

"Caruthersville, Mo.,

April 12, 1920.

Mrs. R. S. Hamra,

Dear Madam:

In reply to yours of the 10th instant., I must say you are very much mistaken about me owing you $ 255.83, for I did owe $ 25, but I paid it to your husband about 2 months before his death, and have a receipt for it; if you have orders that I have sent you, why I'll be willing to pay it, for I always sent orders when my family bought goods. There is no use putting it in court unless you want more expense for I have all my receipts. I settled with R. S., but didn't know how he fixed the books; you must be looking at some old accounts, for I have traded with R. S. for years.

Yours,

JOHN ORTEN."

The receipt is as follows, the signature not appearing in the record here:

"The Boston Store.

R. S. Hamra, Prop.

November 21, 1919.

Received of John Orten on account $ 25."

Alfred Martin testifying as a witness for defendant stated that between November 20th and 30th, 1919, he saw defendant pay plaintiff's intestate some over $ 200; and that the day before this payment was made defendant paid $ 25 and got a receipt. While Martin was on the stand defendant sought to show by him the contents of the receipt for the "200 and some odd dollar" payment. Plaintiff interposed the objection that the receipt itself would be the best evidence, and was sustained. Defendant then was called to account for the receipt, and the following occurred:

"Q. I will ask you if you have looked for the receipt that you got from Mr. Hamra for this payment of two hundred and twenty-five dollars and something? MR. CORBETT: I object to any testimony from this witness about the receipt, or anything that occurred between him and Mr. Hamra, for the reason that he is one of the parties to the transaction in dispute, and Mr. Hamra is dead. BY THE COURT: I will let him show the receipt is lost. MR. CORBERT: Exception. A. Yes, sir; I got it misplaced somewheres; couldn't find it. Made a search about my place for it. No, sir; I can't read or write. Yes, I got a statement from Mrs. Hamra in regard to this claim after R. S. Hamra's death. Yes, I had my girl to write a letter to her for me. Q. You may state what you told her to write in that letter? MR. CORBETT: I object to that; that wouldn't be binding on the plaintiff in this case, whatever his agent did, would bind him and not the plaintiff. BY THE COURT: I believe I will sustain that objection. Q. This letter says, 'In reply to yours of the 10th inst., I must say you are very much mistaken about me owing you $ 255.83, for I did owe you $ 25, but I paid it.' Now, you may state whether or not you told your girl to say you did owe $ 25, or what you did tell her? MR. CORBETT: I object, same reason, wouldn't be binding on plaintiff what he told the girl outside of the presence of--(interrupted) MR. SHEPARD: I know, but they are holding this as his agent, and he has a right to explain and its for the jury to say--(interrupted) BY THE COURT: Read the question again, let me hear it. (Question read over by the stenographer) MR. CORBETT: I object, that would be a selfserving declaration, and would not be binding on the plaintiff, because she wasn't present. BY THE COURT: The letter speaks for itself, and of course Orten made his daughter his agent to write for him, but I will let him make what explanation he desires of that. MR. CORBETT: Note exception. Q. State to the jury, so they will understand, what you told your girl to write. A. I told her to write that I owed them $ 225, in place of $ 25, and she never read the letter to me--I can't read or write anyhow, but I thought I had all my receipts with me and commenced looking for them, and couldn't find the others, but this one. Q. Had you paid him the $ 225? A. Yes, sir. MR. CORBETT: I object to that, because Hamra is dead. BY THE COURT: Sustained."

By section 5410, Revised Statutes 1919, it is provided, among other provisions, that where one of the original parties to the contract or cause of action is dead and the other party to such contract or cause of action shall not be admitted to testify in his own favor or in favor of any party claiming under him, and where an executor or administrator is a party the other party shall not be admitted to testify in his own favor unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts, and contracts as have been done or made since the probate of the will or the appointment of the administrator. This statute has been under consideration a great many times. It is generally agreed that the statute is an enabling one. Its purpose in the main was to remove the disability under the rule at common law that a party to an action was not a competent witness, and one, although not a party, if interested in the result of the action was likewise incompetent under the commonlaw rule. [40 Cyc. 2244; 28 R. C. L., p. 492.] In Jenkins v. Emmons, 117 Mo.App. 1, 94 S.W. 812, plaintiff was seeking to recover on a claim against the estate of one Enoch. The foundation of the claim was a promissory note which was lost. Plaintiff was offered as a witness to prove the note was lost. Objection was made that plaintiff was not a competent witness since Enoch the maker was dead. The court held that plaintiff was a competent witness to establish the loss of the note. Quite a number of cases are cited and reviewed in the Jenkins case, and it is there pointed out that under the commonlaw rule an exception existed whereby a party to a suit was competent to establish the loss of a material written instrument. If at common law defendant in the instant case would have been competent to establish the loss of the receipt, he would be competent under the statute for the same purpose, because the statute is an enabling statute and not a disabling one. It would seem, however, that our rule is that the contents of the alleged lost instrument must first be established by other witnesses before the party to the suit would be competent to establish the loss. This is contrary to the usual procedure, but the reason is apparent. If the party to the suit was first permitted to prove the loss of a written instrument before its existence or contents has been proved by other witnesses it would be most difficult to avoid infringement upon the statute. In order to prove the loss by a party to the suit the existence of the instrument would...