Hill-Dodge Banking Co. v. Loomis
| Citation | 119 S.W. 967,140 Mo.App. 62 |
| Parties | HILL-DODGE BANKING CO., Respondent, v. A. C. LOOMIS et al., Appellants |
| Decision Date | 25 May 1909 |
| Court | Missouri Court of Appeals |
Appeal from Clark Circuit Court.--Hon. Charles D. Stewart, Judge.
AFFIRMED.
Judgment affirmed.
O. S Callihan and T. L. Montgomery for appellant.
(1) The evidence of partnership adduced at the trial tended to prove a non-trading partnership, even if competent, without being alleged in the petition, one member of the firm has no implied authority to bind the firm by issuing negotiable paper and the burden of proof is upon the one seeking to hold the firm liable and plaintiff has failed to so show. 22 Am. and Eng. Ency. Law (2 Ed.), p. 153; Stavnow v Kennefick, 79 Mo.App. 41; Randall v. Lee and Randall, 68 Mo.App. 561; Deardorf's Admr. v Thatcher, 78 Mo. 128; Bank v. Snyder, 10 Mo.App. 211. (2) The widow of Harvey Loomis was not a competent witness and her testimony should have been excluded. R. S. 1889, sec. 4656; Holman v. Bachus, 73 Mo. 49; Moore v. Wingate, 53 Mo. 398; Willis v. Gammill, 67 Mo. 730; McFadin v. Catron, 120 Mo. 252; Johnson v. Banks, 103 Mo.App. 221. (3) Even though a partnership existed between the parties of a non-trading firm such as this, the surviving partner is not a competent witness to prove the execution of the note sued on. McClelland v. McClelland, 42 Mo.App. 32; Rice v. McFarland, 41 Mo.App. 489; Filley v. McHenry, 71 Mo. 417; Bank v. Outhwaite, 50 Mo.App. 124; White v. Muddlemarch, 42 Mo.App. 363; Diel v. Railroad, 37 Mo.App. 454; 22 Am. and Eng. Ency. Law (2 Ed.), pp. 153-4; Deardorf v. Thacker, 78 Mo. 131. (4) A judgment by default having been taken against him A. C. Loomis is not a competent witness to prove the execution of the note by reason of his interest in the controversy. His testimony should have been excluded and the defendants' demurrer to the evidence should have been given. R. S. 1899, sec. 4652; Rice v. McFarland, 41 Mo.App. 489; R. S. 1889, sec. 8118; Meyer v. Thurman, 90 Mo. 433; Chapman v. Daugherty, 87 Mo. 617; O'Bryan v. Allen, 108 Mo. 227; Biebers Admr. v. Baelkman, 70 Mo.App. 506; Bagnall v. Bank, 76 Mo.App. 121; Cleveland v. Colsun, 99 Mo.App. 471; Supreme Council v. Betis, 106 Mo.App. 434. Lightners Admr. v. Gregg, 61 Mo.App. 650; Ladd et al. v. Williams, 104 Mo.App. 390; Stranton v. Ryan, 41 Mo. 510; Clark v. Thias, 173 Mo. 628; Dixon v. Hood, 7 Mo. s. p. 414; Dawson v. Wambles, 104 Mo.App. 272; Am. and Eng. Ency. Law (1 Ed.), vol. 29, p. 703, vol. 30, p. 1049; Alcom v. Cook, 101 Pa. 209; Kuoh v. Hines, 48 Neb. 691; Patton v. Fox, 169 Mo. 97; Davis v. Wood, 161 Mo. 17. (5) As against the administrator the note must be proven as if a non est factum had been set up, the answer being a general denial, the defendant should have been permitted to establish the mental incapacity of Harvey Loomis at the date of the note and the court should not have excluded the same. It was competent evidence under the general issue and does not have to be plead. R. S. 1899, sec. 747; Cavender v. Waddingham, 2 Mo.App. 551; White v. Middlesworth, 42 Mo.App. 368; Corley v. Weddle, 57 Mo. 452; Hoffman v. Parry, 23 Mo.App. 20; Allan v. Richard, 83 Mo. 56; Patterson's Mo. Code Pleading, sec. 552. (6) When, as in this case, there is any substantial evidence, though slight, whether direct or inferential, tending to establish the matters in issue, nor any evidence from which the ultimate facts may rationally be inferred, it is incumbent on the court to submit such issue to the jury, leaving the jury to determine the credibility of the witnesses and the weight and sufficiency of the proof submitted. Knapp v. Hanlen, 108 Mo.App. 353; Brown v. Kimmiel, 67 Mo. 430; Smith v. Hutcheson, 83 Mo. 683; Moody v. Dentsch, 85 Mo. 237; Charles v. Patch, 87 Mo. 450; Novinger v. Vogt, 88 Mo. 589; Berry v. Railroad, 124 Mo. 223. (7) The verdict is against the evidence and the weight of the evidence. The court should have given the instruction prayed for by defendant in nature of a demurrer to all the evidence in the cause. The court wrongfully directed a verdict for plaintiff. Hunt v. Railroad, 89 Mo. 607; Deering v. Saum, 56 Mo. 479; Commissioners v. Clark, 94 U.S. 284; Rowell v. Railroad, 76 Mo. 84; Lonberger v. Pohlman, 16 Mo.App. 39; Avery v. Fitzgerald, 94 Mo. 207.
E. R. Bartlett and C. T. Lewelyn, for respondent, filed argument.
This is an action on a promissory note of the following tenor:
P. O. Revere, Mo.
HARVEY LOOMIS.
Due
Endorsements: "$ 27.25 Paid ac. 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; 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 fifty dollars. 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, Texas, 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 signatures 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 renewal 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 fifty...
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