Kobbe v. Landecker

• Decision Date: 31 March 1862
• Citation: 32 Mo. 170
• Parties: WILLIAM A. KOBBE, Respondent, v. WILLIAM LANDECKER et al., Appellants.
• Court: Missouri Supreme Court

32 Mo. 170

WILLIAM A. KOBBE, Respondent,

v.WILLIAM LANDECKER et al., Appellants.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Court of Common Pleas.

Krum & Harding, for appellants.

The deposition of Joseph Lessler should have been admitted.The ground of his exclusion was that he was the assignor of a chose in action called to testify as to facts in relation thereto which occurred prior to his assignment.But it is contended that the endorser of a negotiable promissory note is not the assignor of a chose in action within the contemplation of our statute concerning witnesses.(Hicks v. Wirth, 10 How. Prac. R. 355, where the question is fully discussed;How. N. Y. Code, 597, § 399.)

John A. Goodlett, for respondent.

I.The notes are made payable at St. Louis, and are therefore, by the statute of the State, non-negotiable.

II.By the statute, (R. C. 1855, p. 1577, § 6,) the assignor of the note was not a competent witness.

DRYDEN, Judge, delivered the opinion of the court.

This is a suit against Landecker et al., the makers of two promissory notes, payable to Lessler & Joseph, and by them assigned to the plaintiff.The defendants, by their answer, admit the assignment of the notes to the plaintiff by Lessler & Joseph; but, by way of destroying the operation of the same, charge that the payees made the assignments as collateral security for certain large sums of money lent and advanced to them by the plaintiff at the time of the assignments, in the State of New York, upon a contract then and there made, which, by the laws of New York, was usurious and void.

On the trial of the case in the court below, the defendant, in support of the defence set up in the answer, offered to read the deposition of Lessler, one of the assignors; but the court, upon the objection of the plaintiff, refused permission to read it, and a verdict and judgment were rendered for the plaintiff, from which the defendants have appealed to this court.

The question presented in the case is as to the competency of the witness Lessler, who is the assignor of the notes sued on.For some purposes--and it may be for some parties--an assignor is a competent witness, but for others he is not.What are the precise limitations and extent of his competency is not always easily determined, depending as it does upon the nature of the facts to which he is called to testify--the time when they transpired, and, it may be, upon the question, by whom he is called.

The second subdivisi...