Hill-Dodge Banking Co. v. Loomis

CourtMissouri Court of Appeals
Writing for the CourtGoode
Citation140 Mo. App. 62,119 S.W. 967
Decision Date25 May 1909
PartiesHILL-DODGE BANKING CO. v. LOOMIS et al.
119 S.W. 967
140 Mo. App. 62
HILL-DODGE BANKING CO.
v.
LOOMIS et al.
St. Louis Court of Appeals. Missouri.
May 25, 1909.

1. EVIDENCE (§ 63)—PRESUMPTIONS OF SANITY.

Prior to an inquest sanity is presumed; and the burden of proving insanity rests on the party asserting it.

2. PLEADING (§ 382) — GENERAL DENIAL — NEW MATTER CONSTITUTING DEFENSE.

Under Rev. St. 1899, § 604 (Ann. St. 1906, p. 631), providing that the answer shall contain a general or special denial of each material allegation of the petition, and a statement of any new matter constituting a defense, etc., a defendant may under the general denial prove any fact showing that plaintiff never had a cause of action, such as nonexecution of the contract sued on, or its illegality, but a defendant, relying on a defense not included in the allegations necessary to support plaintiff's case, must specially plead it.

3. INSANE PERSONS (§ 73)—CONTRACTS—VALIDITY.

The contract of a person too weak mentally to be capable of transacting business entered into before he had been put under guardianship, and without the adverse party knowing of the mental infirmity, is not void, but only voidable on equitable terms.

4. BILLS AND NOTES (§ 489)—DEFENSES— MENTAL INCAPACITY OF MAKER.

The defense that a maker of a note was mentally incompetent must be pleaded, and is not available under a general denial, where the note was executed before the maker was put under guardianship and without the payee knowing of the infirmity.

5. WITNESSES (§ 144)—COMPETENCY—STATUTES.

Under Rev. St. 1899, § 4652 (Ann. St. 1906, p. 2520), providing that a person shall not be disqualified as a witness by reason of his interest, but that in actions where one of the original parties to the contract is dead the other party shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, a maker of a note is a competent witness in an action against himself and the administrator of his deceased co-maker.

6. WITNESSES (§ 145) — COMPETENCY — STATUTES.

The provision in Rev. St. 1899, § 4652 (Ann. St. 1906, p. 2520), disqualifying any party to a suit whose right of action or defense is derived from a person who, if living, would be disqualified from testifying, does not prevent the maker of a note from testifying in an action against himself and the administrator of the deceased co-maker.

7. WITNESSES (§ 144)—COMPETENCY—STATUTES—CONSTRUCTION.

The provision in Rev. St. 1899, § 4652 (Ann. St. 1906, p. 2520), that, when an executor or administrator is a party, the other party shall not be permitted to testify in his own favor unless the contract in issue was originally made with a person who is living and competent to testify, etc., prevents a person who sues or is sued by an executor or administrator from testifying regarding the contract or cause of action in suit, thereby putting the administrator to a disadvantage because the latter would be ignorant of the facts, but does not prevent a maker of a note from testifying in an action against himself and the administrator of the deceased co-maker.

8. APPEAL AND ERROR (§ 1051)—HARMLESS ERROR — ERRONEOUS ADMISSION OF EVIDENCE.

The error in permitting an incompetent witness to testify to a fact proved by competent witnesses is harmless.

Appeal from Circuit Court, Clark County; Chas. D. Stewart, Judge.

Action by the Hill-Dodge Banking Company against A. C. Loomis and another. From a judgment for plaintiff, defendants appeal. Affirmed.

O. S. Callihan and T. L. Montgomery, for appellants. E. R. Bartlett and C. T. Lewellyn, for respondent.

GOODE, J.


This is an action on a promissory note of the following tenor: "Memphis, Mo., July 8th, 1903. Six months after date, for value received, we promise to pay to the order of the Hill-Dodge Banking Company (a corporation), at their banking house in Warsaw, Illinois, the sum of seven hundred and fifty dollars, with interest at the rate of 7 per cent. per annum from date until paid, and if the interest is not paid annually, to become as principal and bear the same rate of interest; and agree to pay all costs and attorney's fees should this note be collected by an attorney, by suit or otherwise, after default in the conditions thereof. If the interest is not paid annually, both principal and interest may be considered as due and collectible at the option of the holder. P. O. Revere, Mo. No. _____. Due _____. A. C. Loomis. Harvey Loomis." Indorsements: "$27.25 paid a/c interest 2-27-04." The petition alleges Harvey Loomis died intestate in Clark county in the year 1904, and defendant Charles Hiller was appointed and qualified as administrator of said Harvey's estate, and alleges A. C. Loomis and Harvey Loomis executed and delivered the foregoing note to plaintiff, paid thereon February 8, 1904, the sum of $27.25, which was duly credited, made no further payment, and the balance is still due. The second count is substantially like the first, except the inclusion

119 S.W. 968

of a prayer for a reasonable attorney's fee, which is put at $50. After the conclusion of said two counts, the note is recited, also the affidavit of the president of plaintiff banking company, that to the best of his knowledge and belief the company had accounted to the estate of Harvey Loomis, for all credits and offsets to which the estate was entitled, and the balance claimed was justly due; also a recital of waiver of notice by Hiller as administrator on January 17, 1905, of the presentation of the demand against the estate of Harvey Loomis, which also stated the administrator was satisfied the demand was correct. A. C. Loomis made default, and judgment was taken against him. Hiller filed an answer denying generally each and every allegation of the petition and all knowledge and information thereof sufficient to form a belief calling for full proof, and praying to be dismissed, with costs.

Harvey Loomis, deceased, was the father of A. C. Loomis, and the evidence goes to show the two were equal partners in farming and raising stock, and each signed notes and other instruments when occasions arose. Mrs. Anna Loomis McLemore, a resident of Concho county, Tex., where the Loomis family now reside, testified she was a daughter of Harvey and a sister of A. C. Loomis, and that the two "were equal partners in farming and stock, except the horses"; that A. C. Loomis had been for years authorized to sign papers of all kinds for Harvey Loomis. Mrs. Frances Loomis, mother of A. C. and widow of Harvey, was permitted to testify for plaintiff over the objection of the administrator that she was not a competent witness because the widow of the deceased, and the law did not permit her to testify to any conversations of her husband whether made to her or to third parties. She said her husband authorized A. C. Loomis to sign her husband's name to any business matter that came up; that the two were equal partners in farming and all stock business, except horses. The partnership was proved by various other witnesses. E. R. Bartlett testified the note in suit was given in renewal of two former notes made by the firm; that he sent the unsigned paper to A. C. Loomis, and it came back with the signature of Harvey Loomis made by a mark and witnessed by Carrie Loomis his granddaughter. As Harvey Loomis had signed his own name to former notes, Bartlett refused to accept the note in suit in the form it was first received, and returned it, asking Harvey Loomis to sign his name, and afterwards it was sent to him in its present form. Bartlett said he saw both the Loomises sign the $500 note for which this one was given in renewal, but did not see this note signed because he received it through the mail. He testified to hearing both A. C. and Harvey Loomis say they were partners; that they applied to him for a loan and gave a statement of their financial condition; that Harvey Loomis told him A. C. Loomis attended to the business of the firm. Hiller, as administrator, testified he knew from their statements the two Loomises were in partnership; that A. C. Loomis usually attended to all business for Harvey Loomis, as the latter was in poor health; that the firm notes were signed with the individual names of both parties and either party signed for both. David N. Lapsley testified Harvey Loomis told him A. C. Loomis attended to the business of the firm. A. C. Loomis testified he and his father were partners, and the partnership continued until the death of the latter, September 11, 1904; that his father signed the note in suit, he (A. C. Loomis) holding his father's hand to steady it while the signature was written. This...

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18 practice notes
  • Drake v. K.C. Pub. Serv. Co., No. 32599.
    • United States
    • Missouri Supreme Court
    • August 12, 1933
    ...660; Young v. Hudson, 99 Mo. 102; Bailey v. Kansas City, 189 Mo. 503; Hock v. Rollins, 158 Mo. 182; Hill-Dodge Banking Co. v. Loomis, 140 Mo. App. 62; Heading & Stave Co. v. Railroad Co., 119 Mo. App. 495; McMenamy's Guardianship, 270 S.W. 662; Weldon v. Railroad Co., 93 Mo. App. 668; Lewis......
  • Hall v. Greenwell, No. 23432.
    • United States
    • Court of Appeal of Missouri (US)
    • July 16, 1935
    ...49; Wigginton v. Burns, 216 S.W. 756, 759; McKenzie v. Donnell, 151 Mo. 455; McAnaw v. Clark, 167 Mo., l.c. 446; Banking Co. v. Loomis, 140 Mo. App. 62, 73. (20) Where a conveyance or contract is made in ignorance of the insanity, with no advantage taken, and with perfect good faith, a cour......
  • Motter v. Patterson, No. 705.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 18, 1933
    ...were delivered and the purchase price paid. Brann v. Missouri State L. I. Co. (Mo. App.) 226 S. W. 48; Hill-Dodge Bank. Co. v. Loomis, 140 Mo. App. 62, 119 S. W. The contract being voidable merely, no ratification was necessary to give it validity. Caldwell v. Ruddy, 2 Idaho (Hasb.) 1, 1 P.......
  • Schuler v. Schuler, No. 29460
    • United States
    • Court of Appeal of Missouri (US)
    • May 15, 1956
    ...existed at a prior time. Indeed, in the instant situation, the opposite presumption obtains. Thus in Hill-Dodge Banking Co. v. Loomis, 140 Mo.App. 62, loc. cit. 70, 119 S.W. 967, loc. cit. 969, Judge Goode, speaking for this court, said: 'But prior to an inquest sanity is presumed, and the ......
  • Request a trial to view additional results
18 cases
  • Drake v. K.C. Pub. Serv. Co., No. 32599.
    • United States
    • Missouri Supreme Court
    • August 12, 1933
    ...660; Young v. Hudson, 99 Mo. 102; Bailey v. Kansas City, 189 Mo. 503; Hock v. Rollins, 158 Mo. 182; Hill-Dodge Banking Co. v. Loomis, 140 Mo. App. 62; Heading & Stave Co. v. Railroad Co., 119 Mo. App. 495; McMenamy's Guardianship, 270 S.W. 662; Weldon v. Railroad Co., 93 Mo. App. 668; Lewis......
  • Hall v. Greenwell, No. 23432.
    • United States
    • Court of Appeal of Missouri (US)
    • July 16, 1935
    ...49; Wigginton v. Burns, 216 S.W. 756, 759; McKenzie v. Donnell, 151 Mo. 455; McAnaw v. Clark, 167 Mo., l.c. 446; Banking Co. v. Loomis, 140 Mo. App. 62, 73. (20) Where a conveyance or contract is made in ignorance of the insanity, with no advantage taken, and with perfect good faith, a cour......
  • Motter v. Patterson, No. 705.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 18, 1933
    ...were delivered and the purchase price paid. Brann v. Missouri State L. I. Co. (Mo. App.) 226 S. W. 48; Hill-Dodge Bank. Co. v. Loomis, 140 Mo. App. 62, 119 S. W. The contract being voidable merely, no ratification was necessary to give it validity. Caldwell v. Ruddy, 2 Idaho (Hasb.) 1, 1 P.......
  • Schuler v. Schuler, No. 29460
    • United States
    • Court of Appeal of Missouri (US)
    • May 15, 1956
    ...existed at a prior time. Indeed, in the instant situation, the opposite presumption obtains. Thus in Hill-Dodge Banking Co. v. Loomis, 140 Mo.App. 62, loc. cit. 70, 119 S.W. 967, loc. cit. 969, Judge Goode, speaking for this court, said: 'But prior to an inquest sanity is presumed, and the ......
  • Request a trial to view additional results

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