Hill-Dodge Banking Co. v. Loomis

Decision Date25 May 1909
PartiesHILL-DODGE BANKING CO. v. LOOMIS et al.
CourtMissouri Court of Appeals

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 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 testimony was objected to on the ground the witness was interested in the result of the action, was a party to the contract in suit, and was not competent as a witness against the administrator. He testified, further, the note was a removal of two other notes which had been given for money used in the firm's business. It was agreed a reasonable attorney's fee would be $50. Some circumstantial evidence tending to establish the partnership was received. The defense offered evidence tending to prove the mind of Harvey Loomis at the date of the execution of the note was so weakened by disease he was unable to transact business or comprehend the nature of a business transaction. All this evidence was excluded by the court and exceptions were saved by defendant; but evidence was admitted to show Harvey Loomis was in poor health before he died. The same theory of defense was rejected in passing on the instructions on the theory that it had not been pleaded. The court directed a verdict for plaintiff, and, the jury having found one, the judgment went accordingly, and defendant appealed.

1. Color of authority may be found for the proposition that lunacy or mental weakness of such intensity as to deprive the patient of ability to understand a business transaction may be given in evidence under a general denial in...

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