Johnson v. Martindale

• Decision Date: 02 November 1926
• Docket Number: No. 19683.,19683.
• Citation: 288 S.W. 970
• Parties: JOHNSON v. MARTINDALE.
• Court: Missouri Court of Appeals

288 S.W. 970

JOHNSON v. MARTINDALE.

No. 19683.

St. Louis Court of Appeals. Missouri.

November 2, 1926.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by Charles H. Johnson against E. Martindale. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

G. B. Silverman, of Kansas City, and May & May, of Louisiana, Mo., for appellant.

Frank J. Duvall, of Clarksville, and Hostetter & Haley, of Bowling Green, for respondent.

BECKER, J.

This is an action on a promissory note. The plaintiff sues in his own right as assignee and holder of the note. The answer pleads payment, and the reply is a general denial. The case was tried without a jury. No declarations of law were asked, given, or refused and no findings of fact made by the court. The verdict and judgment were for defendant, and plaintiff appeals.

It is conceded that on August 27, 1918, J. W. Davis, the stepson of defendant below, was desirous of borrowing a sum of money; that the note herein sued on was signed by both said Davis and defendant, as comakers, indorsed on the back thereof in blank, and delivered to T. S. McQueen who made the loan. The note was payable four days after date. There, is testimony to the effect that in the latter part of January, 1919, McQueen sold and delivered the note for value received to plaintiff, Johnson, and both Johnson and McQueen testified that no payment had been made to them, or either of them, on the note by any one at any time.

J. W. Davis, comaker with the defendant of the note, testified that in the latter part of November or the early part of December, 1918, he sold and delivered to McQueen 5 shares of stock of the Thomas Ruddy Company, at $65 per share; that McQueen paid for the stock in cash, deducting, however, the amount of the note herein sued on, with interest, from the cost of the 5 shares of stock at $65 per share; that, when this transaction was had, McQueen stated to witness Davis that he did not have the note with him, but that it was at his residence, and that he would deliver the note some time later; that McQueen never did deliver the note; and that he heard nothing further about the note from the time of said payment to McQueen in the stock transaction until suit was brought upon the note.

The defendant, as a witness in his own behalf, was permitted to testify, over the objection of plaintiff, to alleged admissions on the part of McQueen that the note in question had been paid. The defendant was also permitted, over objection, to adduce a number of witnesses who testified that the reputation of McQueen for truth and veracity in Clarksville at the time he lived there, some 15 years prior to the time of the trial, was bad.

The only errors assigned are upon the action of the court in admitting evidence and in not finding for the plaintiff.

In considering the assignments of error addressed to the admission of testimony over the objection of plaintiff, appellant here, we have in mind the fact that this case was tried before the court without a jury, and that therefore the same strictness and particularity in testing the correctness of the action of the judge in the admission and exclusion of testimony is not to be applied, as though the case had been tried to a jury. Powers & Boyd Cornice & Roofing Co. v. Muir, 146 Mo. App. 36, 123 S. W. 490.

We first take up the proposition of plaintiff's counsel that the court erred in admitting the testimony of the defendant concerning conversations had by him with McQueen, the original holder of the note herein sued on, at which conversations the plaintiff, assignee of the said McQueen, was not...