Henry v. Diviney

• Decision Date: 16 June 1890
• Parties: HENRY v. DIVINEY et al.
• Court: Missouri Supreme Court

13 S.W. 1057

101 Mo. 378

HENRY v. DIVINEY et al.

Supreme Court of Missouri.

June 16, 1890.

SECONDARY EVIDENCE — LIMITATIONS — NEW TRIAL.

1. Secondary evidence of the contents of a letter addressed to plaintiff is admissible on testimony of his daughter that she took charge of it when received; that she was in charge of the house, and did all the business in caring for her parents, who were very old; that she had searched the house for the letter before coming to the trial, and could not find it; and that she supposes it was among some letters she destroyed some time ago, there being nothing to show that it was willfully destroyed.

2. An instruction that a note is taken out of the statute of limitations if a certain payment was made on a given date, is sufficient without requiring the jury first to find that a memorandum of the payment indorsed on the note was made at or about the time of the alleged payment.

3. Refusal to permit defendants to file an affidavit on motion for new trial, after they have announced that they have closed their evidence on that motion and have argued it, is not error, unless there is an abuse of discretion, which is not shown where the affidavit states that affiant went to certain places, and had barely time to find the witnesses, and what they would testify to, before he had to take the train, and it does not appear that he might not have taken some of their affidavits in the week intervening, and also alleges the discovery of a material witness, with whom he had not been able to communicate otherwise than by telegram, it not stating positively that any communication had been had, or what it was.

Appeal from circuit court, Bates county; JAMES B. GANTT, Special Judge.

Thos. J. Smith and Wm. Page, for appellants. Francisco & Rose and J. S. Francisco, for respondent.

RAY, C. J.

This is an action founded on a promissory note executed by defendants' testator, Antony Henry, deceased, to the plaintiff, Bryan Henry, his father. The note is an ordinary promissory note for $1,000, dated January 1, 1869, and due one day after date. On said note is an indorsement as follows: "Paid, November 6th, 1882, twenty-five dollars." The note was first presented to the defendants, the executors of said Antony Henry, deceased, and to the probate court of Bates county, Mo., for allowance; the attorney of said Bryan Henry having been elected judge of the probate court. Before the said cause was heard in said court, the same was certified to the circuit court, where the case was tried. There were no pleadings, and the defense was the statute of limitations. The body of the note and signature thereto, as was admitted by defendants at the trial, were in the handwriting of said Antony Henry, deceased; but as the note bore date January 1, 1869, and was due one day after its date, it was barred by operation of the statute of limitations, unless taken out of the statute by reason of said payment of $25 thereon on the 6th of November, 1882. The controversy, therefore, was over this payment and indorsement on the note, and is presented in this court on exceptions to evidence in that behalf, admitted on the part of plaintiff, and to instructions given at his instance, and to certain rulings in respect to the application and motion for new trial, which will be taken up in appropriate order hereafter.

When plaintiff offered to read the note with its said indorsement thereon in evidence, it was excluded, upon defendants' objection, until proof of the indorsement was made. Plaintiff then introduced Miss Minnie Henry, daughter of plaintiff, and sister to Antony Henry, deceased, maker of said note. The note was shown her, and she testified as follows: "I know of the indorsement of the $25 on it; was present in my mother's room, at our mother's home, in Lewiston, Illinois. My father, brother Will, and cousin Tom Lally were present. The money was received in a draft on national bank. The indorsement was placed on the note by direction of my father, Bryan Henry, at the time the money was received, and at the date it purports to have been done. Cousin Tom was present when the letter and draft was received. Father called to one of the boys to indorse the amount of the draft on the note, and I think cousin Tom did it. It is in his handwriting, I think. The draft came in a letter written and sent from Butler by my brother A. Henry to my father. The draft was $25. I was at home, and brother Will lived at father's until he came to Butler. He was there. This is the letter the draft came in." Plaintiff here offered, and read in evidence without objection, as follows: "A. Henry, Attorney at Law. Butler, Mo., Nov. 3d, 1882. I wrote you last Monday from Kansas City. I suppose you got it. Harry is not well yet, but has improved some. I send you inclosed $25, and when you need more let me know. I will, some time between this and Christmas, come to see you all. I hope mother will take some care of herself, and get better. There is nothing new I can state. ANTONY." Witness continued: "Brother Antony wrote father a letter from Kansas City a few days before we received the letter containing the draft." Counsel for plaintiff then asked witness to state contents of the Kansas City letter. Defendants objected until said letter was accounted for. Witness thereupon stated she had searched for the letter of A. Henry from Kansas City, "and cannot find it. I live at home with my father. My mother is dead. She was for many years an invalid. I was in charge of the house; did all the business in caring for my parents. When this letter came to father I took charge of it. Before coming to the trial I searched the house for it. Some time ago I destroyed a good many letters, and suppose this must have been one of them, as I can find it nowhere." Counsel for defendants here interposed further objection "that Miss Henry is not competent to prove by herself her custody of said letter as agent," and the further objection that "the evidence as to the loss is not sufficient to admit parol testimony as to contents, but Bryan Henry, the claimant, must himself testify as to its loss," — all of which objections the court then and there overruled, and defendants then and there excepted. Witness then testified: "A few days before this letter with the draft in it came, father received a letter from Kansas City, Missouri, from my brother A. Henry, in which he said he would send father $25, to be applied as interest on this note." Counsel for plaintiff further asked: "Did you ever hear a conversation between your father and A. Henry about this note?" "Heard nothing particular about this note in their conversation in 1883, but I had a conversation with my brother A. Henry in 1884, when he was on his way to the national Democratic convention in...