Hollman v. Lange

• Decision Date: 23 February 1898
• Citation: 44 S.W. 752,143 Mo. 100
• Parties: HOLLMAN v. LANGE.
• Court: Missouri Supreme Court

44 S.W. 752

143 Mo. 100

HOLLMAN v. LANGE.

Supreme Court of Missouri, Division No. 1.

February 23, 1898.

WITNESSES — COMPETENCY — TRIAL — WAIVER OF OBJECTIONS — APPEAL — HARMLESS ERROR.

1. Under Rev. St. 1889, § 8918, plaintiff is an incompetent witness to testify concerning dealings between himself and defendant's deceased agent.

2. A defendant does not waive the objection that plaintiff is incompetent to testify concerning dealings with her deceased agent, where a co-defendant, acting independently of her, introduces him to formally prove his signature while dealing with such agent, and she does not object until he is asked to state the dealings in detail.

3. A party is not harmed by the rejection of evidence subsequently admitted.

4. Plaintiff sued to set aside a release of a trust deed, and to subject the land described in it to the sum secured thereby. He alleged that the grantor had fraudulently induced him to make the release by turning over to him a note of which she was payee, and which she indorsed, "Without recourse." Held, that he could not, on appeal, first claim that she was liable on the breach of the implied contract that said note was a valid obligation.

Appeal from St. Louis circuit court; James W. Withrow, Judge.

Bill by Henry C. Hollman against Mathilda Lange and others. From a judgment for defendant Lange, plaintiff appeals. Affirmed.

Fisse & Kortjohn, for appellant. Lubke & Muench, for respondent.

WILLIAMS, J.

Plaintiff, who was the holder of a principal note for $4,000 and of certain interest notes executed by defendant Mathilda Lange, on the 18th day of December, 1890, and secured by a deed of trust, upon real estate belonging to her in the city of St. Louis, brought this suit to set aside and vacate a release, made by him on the 5th of September, 1893, of said deed of trust, and for the recovery of said $4,000 and interest thereon, and to subject said real estate to the payment thereof. The petition alleges, in substance, as grounds for setting aside said release, that plaintiff was fraudulently induced by defendant's agent, one W. B. Lange, to exchange the notes of Mrs. Lange, held by him and secured by deed of trust upon her property, for a note of $4,000, and two notes for interest thereon, of the Carondalet Real-Estate Company, payable to Mrs. Lange, dated May 19, 1892, and indorsed by her, "Without recourse." It is averred that the delivery to plaintiff of the notes last mentioned was the only consideration for the surrender of defendant's notes, and the satisfaction by plaintiff of the deed of trust upon her property. It is charged that, in order to procure said release, it was falsely and fraudulently represented by defendant's agent to plaintiff that the said notes of the Carondalet Real-Estate Company were unpaid, and that they were secured by a deed of trust of even date therewith, and that said deed of trust was a subsisting incumbrance upon certain lots belonging to said company described therein, and that these representations were relied upon by plaintiff. The plaintiff then alleges that said statements so made to him were untrue, and that the notes delivered to him in lieu of defendant's notes were not those secured by the deed of trust above mentioned, executed by the Carondalet Real-Estate Company, dated May 19, 1892; and, further, that Mrs. Lange, through her agent, had released and satisfied its deed of trust on the 20th of April, 1893, and prior to the negotiations with plaintiff for the exchange. Several persons acquired interests in the real estate included in the Lange deed of trust of December 18, 1890, after plaintiff caused the same to be released. These parties were made defendants in this action, and it was alleged that the deeds, through which they derived title, were not executed or delivered by Mrs. Lange. This branch of the case need not be further noticed, however, as it is conceded in this court that plaintiff is not entitled to reach the property, but, at most, can only have a personal judgment against Mrs. Lange. The defendants filed separate answers, all, however, putting in issue the allegations of the petition. The plaintiff, upon the trial in the circuit court of the city of St. Louis, proved that he purchased, for value, the notes dated December 18, 1890, executed by Mrs. Lange, and that these notes were found duly canceled among the papers of W. B. Lange, after the latter's death, which occurred on the 28th of January, 1894. It further appeared that the plaintiff, on the 5th of September, 1893, executed a release of the deed of trust by which they were secured. W. B. Lange was shown to be the attorney in fact of his mother, the defendant Mrs. Mathilda Lange. He was also the president of the Carondalet Real-Estate Company, and owned all of its stock except two shares. He, as president of said company, signed the $4,000 note and the interest notes of May 19, 1892, and the deed of trust to secure the same, hereinbefore referred to. It was also proved that Mrs. Lange, through her said agent, on the 20th of April, 1893, executed a release of the deed of trust securing the company's notes, reciting therein that said notes were paid. The plaintiff further offered evidence tending to show that the papers purporting to be the notes of said company in his possession were duplicates, and that the original set mentioned in, and secured by, said deed of trust were pledged by W. B. Lange for a debt due from him to the German-American Bank. At any rate, those held by plaintiff were exact copies of the notes pledged to said bank, and both sets conformed to the...