Leach v. McFadden
| Decision Date | 20 June 1892 |
| Citation | 19 S.W. 947,110 Mo. 584 |
| Parties | LEACH v. McFADDEN et al. |
| Court | Missouri Supreme Court |
Appeal from circuit court, Cooper county; E. L. EDWARDS, Judge.
Proceeding by Eliza K. Leach, by scire facias, against J. S. McFadden and others. Judgment for plaintiff. Defendants appeal. Affirmed.
W. S. Shirk and John Cosgrove, for appellant. Draffen & Williams, for respondent.
This was a proceeding in the probate court, by scire facias under the statute, against the defendants, as sureties upon the bond of James H. Johnston, executor of John K. Ragland, deceased, to recover several sums of money, aggregating $5,672.08, ordered by said court to be paid to the plaintiff, as legatee, under the will of the said deceased; taken by appeal to the circuit court, where the plaintiff obtained judgment for $5,511.06, being the amount sued for, with interest, less $1,000 admitted to have been paid. The only plea as to the remainder was payment, and, to support this plea, the defendants, after introducing evidence tending to prove that the plaintiff had given one James Q. Ragland a power of attorney to collect and receive her legacy aforesaid, undertook to prove, by the said James H. Johnston, the executor and principal in the bond, payments by him of the said several sums of money, as ordered to be paid to plaintiff by the probate court. Thereupon the plaintiff, after showing that the said James Q. Ragland was dead, objected to the competency of the said Johnston to testify to such payments, which objection was sustained. The exception to this ruling raises the only question in the case. The ruling of the circuit court is supported by the case of Williams v. Edwards, 94 Mo. 447, 7 S. W. Rep. 429, in which it was held, upon the authority of Stanton v. Ryan, 41 Mo. 510; Butts v. Phelps, 79 Mo. 302; and 1 Whart. Ev. § 469, — that, under the statute which excludes "the surviving party to a contract, the death of a contracting agent excludes the surviving party who contracted with him." In that case the doctrine was applied to the evidence of defendant, by which it was sought to prove accord and satisfaction, of an indebtedness secured by a deed of trust had by him with the agent of a corporation, who was dead. In the case of Butts v. Phelps, it was applied to the evidence of a defendant as to a transaction had with the plaintiff's partner, who was dead at the trial. This case was ruled upon the authority of Stanton v. Ryan, 41 Mo. 510, in which the doctrine was applied to the evidence of the defendant, by which it was sought to set up a special contract made with the deceased partner of the...
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