Harrison v. McCluney

• Decision Date: 19 November 1888
• Citation: 32 Mo.App. 481
• Parties: BRUNETTA HARRISON, Respondent, v. B. F. MCCLUNEY, Administrator of W. H. WELLS, Deceased, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 481

BRUNETTA HARRISON, Respondent, v. B. F. MCCLUNEY, Administrator of W. H. WELLS, Deceased, Appellant.

Court of Appeals of Missouri, Kansas City.

November 19, 1888

Appeal from Johnson Circuit Court. --HON. CHARLES W. SLOAN, Judge.

REVERSED.

The case is stated in the opinion.

S G. Kelley and O. L. Houts, for the appellant.

(1) The petition does not state, nor the evidence disclose, a cause of action in favor of plaintiff. That Wells, George W Harrison being his surety on a note, promised that he would save Brunetta Harrison, plaintiff, harmless from all loss she might sustain by reason of any judgment or proceeding which had been or might thereafter be commenced against her or said George W. Harrison, on account of the indebtedness and suretyship of said George W. Harrison, could never authorize a recovery on plaintiff's behalf. She being in no manner connected with the note, no proceeding thereon could reach her or damage her. A proceeding against George W. Harrison could not damage plaintiff. (a ) The allegation is not that the promise was to indemnify plaintiff for what George W. Harrison might suffer, but for what she might suffer by a proceeding against him, and that only his interest in the lands was sold, which deprived her of no legal right. (b ) G. W. Harrison would not be damaged or entitled to any indemnity as surety until he paid the debt, which he has not done, even if the promise had been to indemnify plaintiff for what he suffered. The allegation and positive proof that plaintiff had received a voluntary conveyance of this land in fraud of Snell, Glass and other creditors of George W. Harrison, which was set aside by a court of equity, instead of aiding plaintiff, must defeat her action. She cannot plead and prove her own wrongful and illegal act, and recover by reason thereof in a court of law. Perry v. Calvert, 22 Mo. 361, 363; Parsons v Randolph, 21 Mo.App. 353; Buckingham v. Fitch, 18 Mo.App. 91; Turley v. Edwards, 18 Mo.App. 676. The allegations and proof of plaintiff show that the promise of Wells was part and parcel of the illegal conveyance. George W. Harrison testifies, " I was defending this suit of Snell against me, and I expect to defend it. I had these notes in my possession; I did not feel disposed to keep them and fight this suit." " Where a contract grows immediately out of, and is connected with, an illegal act, a court of justice will not lend its aid to enforce it." Plaintiff has alleged and proved the illegal, fraudulent conveyance as necessary to recovery, making it a part of her case, and a part of the promise of Wells, which is therefore void. (2) The proof failed to sustain even the averments of the petition, and according to her own evidence defendant's instruction should have been given. (3) The agency of George W. Harrison was not established, and the court should have excluded his evidence. Mfg. Co. v Tinsley, 72 Mo. 458. And while the petition states that plaintiff was to receive the benefit of the contract alleged she was not one of the contracting parties. G. W. Harrison furnished the consideration for the alleged promise of Wells, and contracted with him. Wells is dead, the suit is against his administrator; and G. W. Harrison was not a competent witness. (4) Instructions one and two for plaintiff should not have been given. Instruction number one predicates plaintiff's right of recovery upon " any damages she might sustain by reason of any suit or suits instituted on said note against said George W. Harrison, by said Snell." " Suit or suits on said note against George W. Harrison by Snell" did not mean the suit by Snell and Glass to set aside plaintiff's deed, " but suit on the note" meant for debt and interest against George W. Harrison by Snell. Now, this suit was ended in judgment October 26, 1878. In the first place plaintiff's action is clearly barred by the statute, if any such issue had been tendered by the petition. In the second place, the proof was not shown that she paid any of this judgment on the note, or was out anything in defense of the suit, " by reason of the suit," and therefore suffered no damages. (5) The petition of plaintiff states, and her evidence shows, that the conveyance of Warren to her was voluntary. It was error, then, to permit G. W. Harrison to testify that plaintiff paid a valuable consideration for that conveyance. He should not have been permitted to testify as to his agency. This should have been proved by some one else. (6) The fact that Wells was in bank-ruptcy at the time the petition charges the notes were surrendered to him and his mere promise in lieu thereof taken was material, and defendant should have had the benefit of it.

Samuel P. Sparks and W. W. Wood, for the respondent.

(1) The appellant failed to call the attention of the court to its action in permitting George W. Harrison to testify as a witness in his motion for a new trial, and his complaint in that regard cannot now be heard. Light v. Railroad, 89 Mo. 108; Snell v. Harrison, 83 Mo. 651; State v. Preston, 77 Mo. 294; State v. Emory, 79 Mo. 461; Hull v. Alexander, 77 Mo. 296. There is a broad and well-defined distinction, to a legal mind, between the incompetency of a witness and incompetent testimony, the assignment of error in the motion. " The admission of incompetent testimony" did not call the attention of the court to the alleged incompetency of George W. Harrison as a witness. Hill v. Alexander, 77 Mo. 296. (2) George W. Harrison was a competent witness to the contract set up, he not being a party to the cause at issue and on trial. Davis v. Looker, 47 Mo. 140; 73 Mo. 546; 65 Mo. 305; 68 Mo. 72; 64 Mo. 142; 66 Mo. 429; 63 Mo. 290; 59 Mo. 187. ( a ) He was rendered competent although the husband of plaintiff, by reason of having acted as the agent of the plaintiff in the transaction at issue and on trial. R. S., sec. 4014. (b ) George W. Harrison's agency was clearly and conclusively established by the testimony of Miss Belle Harrison, which was received without objection; but direct and positive testimony is not required to establish the agency--it may be inferred from circumstances. Hull v. Jones, 69 Mo. 587; McGinnis v. Mitchell, 21 Mo.App. 493. (c ) The bringing of this suit was a complete ratification of the agency of her husband; the contract being for her benefit, her assent thereto will be presumed until dissent is manifested. Ridge v. Olmstead, 73 Mo. 573; Mosman v. Binder, 80 Mo. 585; Ensworth v. King, 50 Mo. 477. (3) The contention that the affidavit required by section 155, Revised Statutes, is jurisdictional is not well grounded, for even where the record does not disclose that it was made in the probate court on appeal, the appellate court will presume it was made ore tenus in the probate court. Million v. Ohnsorg, 10 Mo.App. 432. (4) Plaintiff's cause of action did not arise until the final determination of the case of Snell v. Harrison, in the supreme court in October, 1884. A contract of indemnity that is contingent is a continuing contract, and the statute will not begin to run until the event happens upon which the same is founded. Wood on Lim. 265, 323, 14, 17; Bushong v. Taylor, 82 Mo. 660. (a ) This was a personal action, and an administrator, like any other defendant, must plead limitation as a defense; he cannot raise it for the first time by an instruction. Trammell v. Adams, 2 Mo. 126; Benoist v. Darby, 12 Mo. 196; Bliss Code Plead., sec. 355; Wood Lim., sec. 7. ( b ) Any defense required to be, and not properly, pleaded cannot be raised by an instruction. Cockrill v. Thompson, 85 Mo. 510. (5) The appellant cannot raise the objection in this court that the amendment changed the cause of action by simply objecting ore tenus at the trial to the introduction of any evidence under the petition. No such ground appears in the motion for a new trial. The objection must be taken in some appropriate way, as by a motion to strike out the amended pleading. Thieman v. Goodnight, 17 Mo.App. 429; Davis v. Ritchie, 85 Mo. 501; Bettes v. Magoon, 85 Mo. 586. (6) If a cause of action was stated in the petition, there was no error in the instructions given for plaintiff. The court only did in giving them what it was its duty and province to do. Callahan v. Warne, 40 Mo. 131; Powell v. Railroad, 76 Mo. 80. The instructions asked by the defendant and refused were properly refused. Chouteau v. Searcy, 8 Mo. 733; Jones v. Jones, 57 Mo. 138; Miller v. Marks, 20 Mo.App. 369; Chouteau v. Iron Co., 83 Mo. 73. (7) Where an unlawful act has been done, a subsequent, independent contract in reference thereto, founded on a new consideration, is not avoided by the prior alleged wrongful act. Armstrong v. Toler, 11 Wheat. [U. S.] 258. The agreement entered into between Wells, the promisor, and George W. Harrison, the promisee, for the benefit of respondent, was a new contract, founded upon a new consideration, to-wit, the surrender by the promisee to the promisor of the notes, aggregating about six hundred dollars. It will be noted that the learned counsel, in citing Armstrong v. Toler, supra, as sustaining their theory that the contract was tainted with fraud, have committed the unpardonable offense of " felo de se. "

ELLISON P. J.

Plaintiff, who is the wife of George W. Harrison, presented to the probate court a claim of four hundred and sixty dollars against the estate of W. H. Wells. It was allowed in that court and also on appeal in the circuit court. The claim arose in the following manner: Harrison was Wells' security on a note for seven hundred dollars. Wells turned over to him, as indemnity against loss by reason of the suretyship, notes to the amount of four hundred and sixty dollars. Snell obtained judgment against Harrison for the amount of the...