Hathaway v. McBride

• Decision Date: 03 December 1917
• Docket Number: No. 12572.,12572.
• Citation: 198 S.W. 1143
• Parties: HATHAWAY et al. v. McBRIDE.
• Court: Missouri Court of Appeals

198 S.W. 1143

HATHAWAY et al. v. McBRIDE.

No. 12572.

Kansas City Court of Appeals. Missouri.

December 3, 1917.

Appeal from Circuit Court, Buchanan County; Charles H. Mayer, Judge.

"Not to be officially published."

Action by Maranda Hathaway, executrix, and Bert Hathaway, executor, of the estate of Edwin Hathaway, deceased, against Edward McBride. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

L. C. Gabbert, P. A. Slattery, and W. B. Norris, all of St. Joseph, for appellant. W. H. Haynes, of St. Joseph, for respondents.

BLAND, J.

On April 18, 1904, defendant executed in favor of Edwin Hathaway and Burr Hull a promissory note in the sum of $175, payable 15 months after date. In the spring of 1911 Burr Hull assigned his interest in the note to Edwin Hathaway and thereafter the latter died, and this suit is brought on the note by the executors of his estate. In his answer the defendant admitted "the execution of a note of the purport of the note alleged in plaintiff's petition," but denied "that he executed a note jointly with (meaning payable to) the deceased and said Burr Hull," and further pleaded that the note described by the defendant was given in consideration of a certain transaction between the defendant and the deceased, wherein the deceased sold defendant a horse, and that deceased made certain warranties in reference to the qualities of said horse, that if the horse did not come up to the warranties the note should be returned, that in fact the horse did not come up to the standard warranted, and that thereafter deceased and defendant had a settlement of this matter by agreement between them that the note should be of no effect, and that each should have a half interest in the work of the horse, and that thereafter, on the 15th day of September, 1909, defendant and deceased had a settlement in reference to the horse under the new agreement wherein defendant paid deceased $50 in settlement of the latter's share of the earnings of the horse.

At the trial defendant admitted that the note was made to both Hathaway and Hull as payees. Plaintiff introduced testimony tending to show that the $50 paid by defendant to deceased was not on account of the matters alleged in defendant's answer, but was a straight out and out payment on the note. This evidence was given by Burr Hull, one of the payees in the note, who testified by deposition that he and Hathaway were at the home of the defendant during the winter of 1910 and...