Hayner v. Crow

• Decision Date: 31 October 1883
• Citation: 79 Mo. 293
• Parties: HAYNER v. CROW, Appellant.
• Court: Missouri Supreme Court

79 Mo. 293

HAYNER

v.CROW, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Franklin Circuit Court.--HON. A. J. SEAY, Judge.

AFFIRMED.

Crews & Booth for appellant.

T. A. Lowe and A. W. Underwood for respondent.

EWING, C.

The appellant was a member of the firm of Crow, Kendrick & Co., and respondents sued him in the circuit court of Franklin county on a lost note alleged to have been made by Crow, Kendrick & Co. to respondents, on which $24 had been paid. Appellant answered denying that the firm of Crow, kendrick & Co. executed any such note or made any payment on it.

Respondents offered the deposition of one A. K. Root, one of the firm of Hayner & Co., who testified in substance that respondents sent Crow, Kendrick & Co. a reaper for sale, who, after some time, reported that they had sold it to J. F. Kendrick, one of the firm of Crow, Kendrick & Co., and sent a note dated September 6th, 1873, executed by J. F. Kendrick to J. E. Hayner & Co. for $185, which was signed on the back by Crow, Kendrick & Co.; that $24 was paid on it about August 22nd, 1874; that respondents delivered this note to the express agent for collection and witness has not seen the note since, and it was not in the possession of respondents. The appellant objected to this deposition because it tended to prove a different note to the one sued on; that it showed a note made by Kendrick and indorsed by Crow, Kendrick & Co., and not a note made by Crow, Kendrick & Co., as sued on. The court sustained the objection as to that part of the deposition showing a different note, and overruled it as to that part showing the loss or destruction; which, taken with subsequent testimony, proved to be material and competent. Respondents then offered the depositions of Waters and Anderson, agents of the express company, who testified that they had searched for and could not find the note; respondents also offered in evidence the receipt of the express company for said note, as follows: “Adams Express Company, St. Louis Missouri, May 23rd, 1874. $185. Received from J. E. Hayner & Co., for collection, a note on Crow, Kendrick & Co., at Sullivan Missouri, dated September 9th, 1873, due June 12th, 1874, for the sum of $185, proceeds to be returned to J. E. Hayner & Co. Harper, for the Company.” These depositions and receipt were objected to, but we think the objection very properly overruled, as the evidence tended to prove the existence and loss of the note sued on which could be very well considered by the jury. Respondents also offered the deposition of Kendrick himself, who swore to the making of the note by Crow, Kendrick & Co. for the machine; and also offered two letters of Crow, Kendrick & Co. to respondents admitting the sale to Kendrick and inclosing note for the purchase money. But it was admitted on the trial that Kendrick had himself signed these letters and sent them to respondents.

Appellant offered evidence of Breckenridge that Kendrick did all the...